Lake Eugenie Land & Development, Inc. v. BP Exploration & Production, Inc.

JAMES L. DENNIS, Circuit Judge,

concurring in part and dissenting in part:

This case arises out of BP’s proposal to the Administrator that he modify the consent decree and settlement agreement, or his interpretation of them, to provide that the Administrator must convert a claimant’s cash-method accounting data into the *348accrual-method data proposed by BP before using the data to calculate the business economic loss of the claimant. The Administrator rejected BP’s proposal and the district court affirmed the Administrator’s decision. BP appealed to this court. The majority, instead of addressing the only question presented, whether conversion of cash-method data into accrual-method data is or should be required, declares the record confusing, intuits a different issue, whether the Administrator has been converting accrual-method data into cash-method data before processing claims, and remands for the district court to determine whether the Administrator has done so.

In my view, we should affirm the district court’s judgment for the reasons assigned hereinafter. Moreover, the remand is unnecessary because the record clearly reflects that the dispute between the Administrator and BP is only about whether the Administrator must convert a claimant’s cash-method data into BP’s proposed accrual-method data before calculating a claimant’s business economic loss. BP does not contend that the Administrator is mishandling claimants’ accrual-method data claims.

In this opinion, I first explain why this appellate court must uphold the district court’s judgments affirming the Administrator’s rejection of BP’s actions to force him to modify, or to revise his interpretation of, the district court’s consent decree incorporating the parties’ settlement agreement. Second, I explain how the majority misunderstands the record, sails past the only issue on appeal, and unnecessarily and prematurely remands the case to the district court. Finally, I respectfully disagree with Judge Clement’s separate opinion, which expounds on class-action-law issues that are not presented to this panel but to a different three-judge panel scheduled to hear that appeal in November and which purports to instruct the district court to issue an injunction pursuant to her class-action-law declarations.

I.

Having failed to convince the Administrator to modify the terms of the district court’s consent decree, which approves and adopts the parties’ settlement agreement, or to persuade the district court to reverse the Administrator’s decision, BP appeals to this court. Because BP agreed to the settlement and, in fact, actively sought the district court’s approval and adoption of it in its consent decree, BP cannot seek to modify the consent decree unless it demonstrates that there has been a significant change in circumstances or the law that warrants a revision of the decree by the district court. BP appears to acknowledge that it failed to carry this burden below, for it now argues that the parties’ settlement agreement incorporated in the district court’s consent decree has always required the Administrator to convert a claimant’s cash-method data into BP’s proposed accrual-method data before calculating a claimant’s business economic loss. However, the Supreme Court, in United States v. Armour & Co., 402 U.S. 673, 91 S.Ct. 1752, 29 L.Ed.2d 256 (1971), and its progeny, has explained that a consent decree must be interpreted within its “four corners” and that an appellate court cannot add to or subtract from the consent decree or interpret it according to what the court thinks is the purpose of the agreement. This court, applying the four corners of Armour, must find that the decree does not contain the conversion and matching requirements that BP asks us read into it.

A.

I start by reviewing background that highlights the true issue on these appeals. *349In this case, the settlement agreement and consent decree resolved all claims for business economic losses against BP resulting from the 2010 explosion and oil spill of the BP Deepwater Horizon rig. The settlement establishes formulas by which the Administrator is authorized to identify eligible claimants, calculate their business economic losses, and pay their claims. BP agreed to fund the settlement program without ceiling or limit (other than those limits inherent in the formulas for calculating loss) with respect to the amount that the Administrator may award to business-economic-loss claimants. Class counsel sought and obtained the district court’s certification of a settlement-only class, and, in exchange, BP received a class- and region-wide release from liability for spill-related business-economic-loss claims.1

The Administrator began identifying, calculating, and paying business-economic-loss claims in May 2012 and continued to do so without any objection from the parties relating to his calculations or otherwise.2 On September 28, 2012, BP requested a discussion regarding how the Administrator calculated compensation with respect to business-economic-loss claimants that maintain their books using cash-basis accounting principles. On October 2, 2012, Charles R. Hacker, an accountant employed by the settlement program, participated in a conference call with the Administrator’s staff and the parties to answer BP’s questions. During the call, Mr. Hacker stated that “the Settlement Agreement does not specify a prescribed accounting methodology” and that “a claimant’s accounting method needed to be applied on a consistent basis,” in other words, that the Administrator and his team would consider revenue and expenses as they were booked by the claimant. R. 18336-37.3 In other words, Mr. Hacker told the conference call participants that claims submitted with data from a claimant’s books using cash-method accounting would be accepted by the settlement program so long as the claimant utilized that accounting practice consistently. See R. 18336-37. After the call, BP made no objection, did not file a complaint, or ask for an administrative panel hearing on the matters discussed.

On November 8, 2012, the district court conducted a hearing on final approval of the parties’ class action and settlement agreement. By this time, the settlement program had received over 79,000 completed claims and authorized payment in excess of $1.3 billion. At the hearing, BP *350supported final approval of the settlement and, with class counsel, rebutted the objections of certain objectors. In fact, mere weeks after BP was told on the October 2, 2012 conference call that the Administrator and his accountants were accepting and processing claims based on claimants’ cash-method accounting data, BP informed the court that, “[t]he settlement is working as we anticipated and as we negotiated.” R. 8251. BP did not argue at the hearing, or in any filings submitted in connection with the hearing, that it had any objection or disagreement regarding the Administrator’s use of claimants’ cash-method accounting data to calculate the claimants’ business economic losses. On December 21, 2012, the district court granted final approval of the settlement agreement and adopted it in its consent decree. In short, BP did not complain or object to the court in respect to the consent decree or ask for any provision that would allow it to change the decree after it became final.

It was not until December 5, 2012, almost a month after the final-approval hearing, that BP first expressed its concern to the Administrator that his use of claimants’ cash-method data, particularly in connection with construction and professional-services firms’ claims, might, according to BP, result in overcompensation of those claimants. See R. 18325. Several days later, on December 11, 2012, BP sent a follow-up email to the Administrator’s special counsel, raising a number of questions and posing several hypothetical involving claims by construction, professional-services, and agriculture-industry claimants. R. 18372-74. In particular, BP asked, “[i]f financial data submitted by a claimant does not accurately assign revenue to the months in which it was earned” (which, according to BP, occurs with cash basis accounting), “what steps do you take to obtain financial data that accurately reflects the earning of revenue by month?” R. 18372. Days later, on December 16, 2012, class counsel responded by asking the Administrator to issue a policy statement providing that, “[w]hen a business keeps its books on a cash basis, revenue is earned during the month of receipt, irrespective of when the contract was entered or services were performed.” R. 18381.

BP’s next move, on the 8th or 9th of January 2013, was to seek to have the Administrator modify the settlement’s formula for compensating business economic loss or revise his interpretation of that formula.4 In a lengthy memorandum, BP expressed its opinion, based on its reading in isolation the terms “revenue,” “earned,” “corresponding,” and “comparable,” that the settlement requires the Administrator, before calculating business economic loss, to convert the books of all claimants using cash-basis accounting to accrual-basis accounting, displaying revenue in the months earned and matching it with the expenses that produced it, regardless of when the expenses may have been incurred. BP, however, in an attachment to its memorandum labeled “Tab 1,” proposed a compromise: “In a good faith effort to implement the [business-economic-loss] framework, BP proposes a simple[ ] and workable approach for each industry [construction, agriculture, and professional services] that is claimant-friendly and requires limited additional effort by the Settlement Program.” R. 18399 (emphasis added). BP *351then proceeded to set forth its proposed modifications to the business-economic-loss compensation formula for claimants from the concerned industries. For construction claims, for instance, BP proposed the following:

Alignment of revenue and corresponding variable expenses can be substantially improved in two steps:
First, determine the ratio of claimant’s annual revenue to annual variable expenses for 2010 and each of the Benchmark Period years.
Second, match revenue to corresponding variable expenses by multiplying (i) variable expenses reported for a given month and (ii) the ratio of revenue to variable costs calculated on an annual basis.
Last, adjustments should be made for irregular or extraordinary cost entries that can appear in monthly financial statements....
After undertaking these steps, the variable profit calculation in Step 1 of the [business-economic-loss] compensation formula and the revenue calculations of the causation formula can proceed as usual with the Settlement Program selecting the Compensation Period months and Benchmark Period year(s) that maximize the claimant’s award.

R. 18399-400. Following this section, BP’s Tab 1 sets forth similar detailed changes and additions with respect to farming firms’ claims that it describes as a “proposed approach to improving the alignment of revenue to corresponding expenses for farm claims [that] generally tracks the two-step approach proposed ... for construction firm claims.” R. 18400. Finally, BP’s Tab 1 outlines its proposals with respect to professional services firms, including a detailed “proposed approach to align revenue to corresponding expenses for professional services firms [that also] generally tracks the two-step approach proposed ... for construction and farming claims.” R. 18401.

Having reviewed the parties’ submissions, the Administrator, on January 15, 2013, issued a policy statement stating that, in performing the calculations under the business-economic-loss framework, he would typically consider both revenue and expenses in the periods in which the revenues and expenses were recorded at the time and would not typically reallocate such revenue or expenses to different periods, but he would reserve the right to adjust financial statements in certain circumstances, including but not limited to, inconsistent basis of accounting between the Benchmark and Compensation Periods, errors in previously recorded transactions, and flawed or inconsistent treatment of accounting estimates. R. 18327-28. Importantly, the Administrator’s special counsel, in the cover letter transmitting the policy statement, made clear that the Administrator “d[id] not view it within his authority to carve out specific types of claims in the fashion” proposed by BP. R. 18326. BP appealed to the district court, complaining of the Administrator’s refusal to either modify the settlement decree or revise his interpretation of the compensation formula so as to bring about the same result as a modification. The district court, however, upheld the decision of the Administrator, ruling that BP’s proposed modification would both conflict with the terms of the parties’ agreement and add substantive provisions thereto that had not been agreed to by the parties or approved of by the court during the final-approval hearing in which BP could have complained but did not. BP has now appealed to this court.

B.

Because BP has not satisfied its heavy burden of showing that a change in cir*352cumstances or law warranted the modifications it sought, the district court correctly-affirmed the Administrator’s decision rejecting BP’s argument and actions to modify the agreement to which the parties had agreed and which the district court had approved and adopted in its consent decree.

A party seeking to modify the substance of a district court’s consent decree bears a heavy burden of establishing that revision of the decree is justified. See Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S. 367, 383, 112 S.Ct. 748, 116 L.Ed.2d 867 (1992). In Rufo, the Supreme Court explained that,

[although ... a district court should exercise flexibility in considering requests for modification of a[ ] ... consent decree, it does not follow that a modification will be warranted in all circumstances. Rule 60(b)(5) provides that a party may obtain relief from a court order when “it is no longer equitable that the judgment should have prospective application,” not when it is no longer convenient to live with the terms of a consent decree. Accordingly, a party seeking modification of a consent decree bears the burden of establishing that a significant change in circumstances warrants revision of the decree.

Id5 Further, the Court said that, “[a] party seeking modification of a consent decree may meet its initial burden by showing either a significant change either in factual conditions or in law.” Id. at 384, 112 S.Ct. 748 (emphasis added). “Ordinarily, however, modification should not be granted where a party relies upon events that actually were anticipated at the time it entered into a decree.” Id. at 385, 112 S.Ct. 748 (citing Twelve John Does v. District of Columbia, 861 F.2d 295, 298-99 (D.C.Cir.1988), and Ruiz v. Lynaugh, 811 F.2d 856, 862-63 (5th Cir.1987)). But, “[i]f it is clear that a party anticipated changing conditions that would make performance of the decree more onerous but nevertheless agreed to the decree, that party would have to satisfy a heavy burden to convince a court that it agreed to the decree in good faith, made a reasonable effort to comply with the decree, and should be relieved of the undertaking under Rule 60(b).” Id.

BP has failed to demonstrate that there has been a significant change either in circumstances or in the law since it entered into — and, in fact, affirmatively sought adoption of — the consent decree approving and incorporating the settlement agreement. As the record reflects, BP was fully aware that it would be required to pay claims by firms in the construction, agriculture, and professional-services industries that were supported by these businesses’ cash-basis accounting data and yet, nevertheless, BP agreed to the settlement and actively sought the district court’s approval of the eventual consent decree. Accordingly, it is this court’s clear duty to affirm the district court’s judgment rejecting BP’s attempts to force the Administrator to modify the consent decree and the parties’ settlement simply because it is no longer convenient for BP to live with the terms to which it agreed.

C.

In its appeals to this court, BP conveniently forgets that it sought to have the Administrator modify the settlement agreement’s formula for calculating busi*353ness economic loss by adding the detailed provisions that it proposed in Tab 1, attached to its January 2013 memorandum. Now, BP argues, belied by its attempt to have the Administrator modify the settlement decree, that the parties intended all along to require the Administrator to convert each claimant’s cash-basis data to accrual-basis data by restating revenue in the month in which it was earned and matching it to the expenses that generated it, regardless of when the expenses were incurred. The words of the district court’s consent decree, and the settlement agreement approved therein, however, do not support BP’s proposed interpretation.

In reviewing a district court’s consent decree, our primary rule of interpretation is the “four corners” doctrine, under which the decree is construed according to its terms, not on the basis of “what might satisfy the purpose of one of the parties to it.” See United States v. Armour & Co., 402 U.S. 673, 682, 91 S.Ct. 1752, 29 L.Ed.2d 256 (1971). In addition, certain “aids to construction” commonly employed in construing contracts may be referenced. See United States v. ITT Continental Baking Co., 420 U.S. 223, 238, 95 S.Ct. 926, 43 L.Ed.2d 148 (1975). “Such aids include the circumstances surrounding the formation of the consent order, any technical meaning words used may have had to the parties, and any other documents expressly incorporated in the decree.” Id. In so doing, we must not strain the decree’s precise terms or impose other terms in an attempt to reconcile the decree with our own conception of its purpose. See Armour, 402 U.S. at 681-82, 91 S.Ct. 1752. A consent decree is the product of negotiation between the parties and embodies a compromise struck among various factors, including the parties’ competing goals and the time, expense, and risk of litigation. See id. at 681, 91 S.Ct. 1752. In this way, “the decree itself cannot be said to have a purpose; rather the parties have purposes, generally opposed to each other, and the resultant decree embodies as much of those opposing purposes as the respective parties have the bargaining power and skill to achieve.” Id. at 681-82, 91 S.Ct. 1752.6 By consenting to a decree, the parties have waived their rights under the Due Process Clause to litigate the issues raised by a complaint. Id. at 682, 91 S.Ct. 1752. A court should not later modify the decree by interposing terms not agreed to by the parties or not included in the language of the decree. See id.; see also United States v. Atl. Ref. Co., 360 U.S. 19, 23, 79 S.Ct. 944, 3 L.Ed.2d 1054 (1959); Hughes v. United States, 342 U.S. 353, 357, 72 S.Ct. 306, 96 L.Ed. 394 (1952).

Exhibit 4C of the settlement and consent decree, which is the pertinent subject of these appeals, details the compensation framework for business economic loss.7 By its terms, the framework “compares the actual profit of a business during a *354defined post-spill period in 2010 to the profit that the claimant might have expected to earn in the comparable post-spill period of 2010.” R. 4277. The framework includes two steps. Step one, which is at issue here, “[cjompensates claimants for any reduction in profit between the 2010 Compensation Period selected by the claimant and the comparable months of the Benchmark Period” and “reflects the reduction in Variable Profit (which reflects the claimant’s revenue less its variable costs) over this period.” R. 4277. Step two, which is not at issue in these appeals, is intended to “[c]ompensate[ ] claimants for incremental profits or losses the claimant might have been expected to generate in the absence of the spill relative to sales from the Benchmark Period.” R. 4277.

With regard to step one, the Compensation Period is “selected by the claimant and may include three or more consecutive months between May and December 2010” (in other words, several months shortly after the oil spill began). R. 4277. The “Benchmark Period” is “the pre-[spill] period which claimant chooses as the baseline for measuring its historical financial performance”; for the Benchmark Period, “the claimant can select among the following ... [pjeriods: 2009; the average of 2008-2009; or the average of 2007-2009, provided that the range of years selected by the claimant will be utilized for all Benchmark Period purposes.” R. 4277. Variable Profit is then defined as follows:

Variable Profit: This is calculated for both the Benchmark Period and the Compensation Period as follows:
1. Sum the monthly revenue over the period.
2. Subtract the corresponding variable expenses from revenue over the same time period.

R. 4277. Having defined the relevant terms, the settlement finally prescribes “Step 1 Compensation” as follows: “Step 1 of the compensation calculation is determined as the difference in Variable Profit between the 2010 Compensation Period selected by the claimant and the Variable Profit over the comparable months of the Benchmark Period.” R. 4277.

The majority states, and I agree, that the settlement permits a business-economic-loss claimant to select a comparison interval as short as three months (or as long as eight months). That is, claimants may choose income from any three consecutive months between May and December of 2010 to compare with income in a Benchmark Period of the same three to eight months in 2009, the average of 2008-2009, or the average of 2007-2009. This flexibility to choose a shorter comparison interval allows a claimant to take advantage of the natural variability in revenue over the course of a given year. Claimants may choose a three-month period in which their income was particularly bad in 2010, or particularly good in the Benchmark Period, and exclude from the calculation other months in which their 2010 income might have actually been quite good. The text of the settlement illustrates this feature (and others involving the settlement’s causation framework) with three examples as follows:

Scenario 1:

1) Claimant selected the months of May-July 2010 for the purpose of determining causation, and the claimant, using these months, meets the causation test for the Benchmark period years of 2009, 2008-2009 and 2007-2009;
2) In determining Compensation, Claimant would be allowed to select the months of August through November 2010 as compared to the months of August through November in either 2009, 2008-2009 or 2007-2009 as the Benchmark *355years-whichever provides the highest compensation.

Scenario 2:

1) Claimant selected the months of October-Deeember 2010 for the purpose of determining causation and the claimant, using these months, meets the causation test for the Benchmark period years of 2009, 2008-2009;
2) In determining compensation, Claimant could select the months of May-September 2010 as compared to the months of May-September in either 2009 or 2008-2009 — -whichever provides the highest compensation.

Scenario 3:

1) Claimant selected the months of June-August 2010 for the purpose of determining causation and the claimant, using these months, meets the causation test for the Benchmark period year of 2009. In addition, Claimant selected the months of August-October 2010 for the purpose of determining causation, and the claimant, using these months, meets the causation test for the Benchmark period years of 2007-2009;
2) In determining compensation, Claimant could select the months of May-December 2010 as compared to the months of May-December in either 2009 or 2007-2009 — -whichever provides the highest compensation.

R. 4283. Consequently, if this court were to interpret the settlement agreement to require the Administrator to convert each claimant’s cash-method data into accrual-method data showing monthly revenue as earned matched with the expenses that generated it regardless of when the revenue and expenses were recorded on the claimant’s books, we necessarily would be violating Armour’s four-corners rule: BP’s proposed conversion and matching requirements, which would require the Administrator to restate the months in which claimants recorded their revenue - and expenses, are not contained within the four corners of the decree and settlement. And, for the reasons already stated, we, in effect, would be modifying the terms of the consent decree without BP having satisfied its burden of showing a significant change in circumstances or law justifying that modification. Such a modification of the settlement decree would conflict with the clear examples in the settlement agreement and would require the Administrator go outside and perhaps far beyond the Compensation and Benchmark Periods selected by the claimant to trace the generative expenses to match with revenue earned in those periods. Further, even if such a reconstruction of the claimant’s business history were possible, it would likely differ markedly from the cash-method claimant’s records kept in 2009 and the first quarter of 2010 when the claimant had no inkling that an oil spill affecting his business would occur on April 20, 2010. The effect of our so interpreting the settlement agreement could be devastating to many claimants who are unable to translate or reconstruct their cash-basis data into revenue matched to the expenses that generated it under BP’s proposed conversion and ultra matching requirements. Moreover, forced conversion of all cash-basis data into accrual-basis data would discriminate against the remaining cash-basis claimants by either thwarting their claims entirely or treating their claims less favorably than the cash-basis claims already resolved.

The plain wording of the settlement agreement read as a whole and with all of its supporting documents permits claimants to support their business-economieloss claims using their own business rec*356ords and does not require that these records be kept in any particular form. In fact, BP, jointly with class counsel, told the district court that “[t]he documents required to support Business Economic loss claims ... are the documents that businesses either keep in the ordinary course or that may readily be prepared from a business’s books and records.” R. 8558 (jointly proposed findings of fact and conclusions of law filed in the district court by BP and class counsel in support of final approval); see also In re Oil Spill by Oil Rig Deepwater Horizon in Gulf of Mexico, on April 20, 2010, 910 F.Supp.2d 891, 904 (E.D.La.2012) (same) (final-approval order); CPA Societies’ Amicus Br. at 1-14. This is the way the district court interpreted the settlement agreement and consent decree in its March 5, 2013 order upholding the Administrator’s rejection of BP’s attempt to modify the parties’ agreement or change the Administrator’s interpretation of it. R. 12550 (“[T]he documentation provisions contained within Exhibit 4A make it clear that the Program’s analysis is to be based on revenue and expenses during the relevant periods chosen by the claimant, as reflected in historical business records. ... Exhibit 4A does not require that accounting occur on an ‘accrual’ basis, as opposed to a ‘cash’ basis.”) (emphasis added). In other words, a claimant may support its claim with data recorded using cash-basis accounting if it has consistently used that method in the ordinary course of its business.8 Further, the claimant may use records kept using accrual-basis accounting if that is what it has consistently applied in the ordinary course of its business. Likewise, the settlement does not instruct the Administrator to refrain from accepting and relying on claims supported by a claimant’s own business records, whether cash basis or accrual basis, so long as the claimant’s books have been consistently kept on the same method and in the ordinary course of business. Most important, the settlement nowhere instructs the Administrator to restate or convert a claimant’s claim submitted using cash-basis accounting data into accrual-basis accounting data, showing revenue only in the months in which it was earned, and matching the monthly earned revenue with the expenses that generated it, regardless of when the expenses were made or incurred.9 Simply stated, none of the terms, conditions, and qualifications that BP proposes and argues for are stated or contained within the four corners of the consent decree and settlement agreement.

For these reasons, I respectfully conclude that the majority has unintentionally fallen into legal error by not recognizing that the four-corners rule of Armour and other teachings by the Supreme Court require that the district court’s consent decree containing the settlement agreement *357be interpreted as written; that this appellate court may not add to or subtract from the district court’s consent decree; that likewise we must not strain the decree’s precise terms or impose other terms in an attempt to reconcile the decree with our own conception of its purpose; and that the district court’s interpretation of its own consent decree was correct and should be affirmed. See Armour, 402 U.S. at 682, 91 S.Ct. 1752; see also United States v. Atl. Ref. Co., 360 U.S. 19, 23, 79 S.Ct. 944, 3 L.Ed.2d 1054 (1959); Hughes v. United States, 342 U.S. 353, 357, 72 S.Ct. 306, 96 L.Ed. 394 (1952); Walker v. U.S. Dep’t of Hous. & Urban Dev., 912 F.2d 819, 825 (5th Cir.1990) (“Nor are courts at liberty to redraft the obligations commanded by the decree absent consent of the parties.”).

II.

I respectfully disagree with the majority’s reversal of the district court’s decision and its remand of the case to the district court to determine whether the Administrator has been converting claims submitted with accrual-method accounting data into cash-method supported claims and processing them on that basis. The majority itself concedes that this scenario is “unlikely” and that BP has not explicitly asserted this. Ante, at 335. That BP has not so argued in these appeals makes the majority’s sua sponte raising of the issue highly irregular and contrary to our normal rule of addressing on appeal only the issues raised and argued by the appellant. Furthermore, careful inspection of the record in this case demonstrates that the majority’s intuited scenario is not just unlikely; the record demonstrates that it is plainly not the case.

Neither BP nor class counsel has ever questioned whether the Administrator was properly applying Exhibit 4C’s compensation requirements to use claimants’ accrual-method accounting data to calculate and pay business-eeonomic-loss claims. On December 5, 2012, BP expressed concern to the Administrator that he was overcompensating claimants by using their cash-method data in his calculations. On December 11, 2012, BP sent a follow-up email to the Administrator’s special counsel asking, if financial data submitted by a claimant does not accurately assign revenue to the months in which it was earned, what steps would the Administrator take to obtain financial data that accurately reflect the earning of revenue by month. R. 18372. On December 16, 2012, class counsel responded by asking the Administrator to issue a policy statement providing that, “[w]hen a business keeps its books on a cash basis, revenue is earned during the month of receipt, irrespective of when the contract was entered or services were performed.” R. 18381. On January 8 or 9, 2013, BP demanded that the Administrator revise his interpretation of the Exhibit 4C formula so as to require him to convert the books of all claimants using cash-basis accounting to accrual-basis accounting or to modify the formula to do so for construction, farming, and professional-services firms using cash-method accounting. The Administrator’s refusal to do so and his January 15, 2013 policy statement, stating that he “will typically consider both revenues and expenses in the periods in which those revenues and expenses were recorded at the time” and that he lacked authority to change the settlement agreement by carving out exceptions for certain categories of claimants, led directly to BP’s appeal to the district court to reverse the Administrator’s decision. Thus, nothing in the communications between the parties and the Administrator indicates that their dispute involved the conversion of accrual-based accounting data to cash-based accounting data. The district court affirmed the decision of the Administrator rejecting BP’s demand that the Administrator either (a) interpret the settlement agreement to *358require the conversion of all claimants’ cash-method accounting data to a particular kind of accrual-method data prior to calculating the claimants’ business economic loss or (b) modify the settlement agreement in that way with respect to construction, farming, professional-services claims based on cash-method accounting data.

Consequently, the majority’s notion that Administrator has ever converted any claimant’s accrual-method accounting data to cash-method data has no support in the record or the briefs in this case. The majority’s precipitous reversal of the district court’s judgment and remand for unnecessary proceedings is erroneous and quite unfortunate for everyone concerned in this case.

III.

A.

I now turn to the discussion in the majority opinion of so-called “fictitious” claims (part II of the opinion), which is now supported by the vote of one judge. Like Judge Southwick, I do not join this section of the opinion and I respectfully dissent from it as well. These appeals arise from a dispute regarding BP’s proposed modification or reinterpretation of the settlement agreement’s text; a separate appeal addressing the district court’s certification of this class action and acceptance of the settlement agreement has been docketed and calendared for oral argument on November 4, 2013 before a different panel of judges. See In re Deep-water Horizon Appeals of the Economic and Property Damage Class Action Settlement, No. 12-31155 (5th Cir. filed Nov. 19, 2012). The parties have not argued those certification and acceptance issues to this panel, and we may not properly decide them or pronounce upon them.

Judge Clement begins her discussion by expressing concern regarding whether the plaintiff class members have “colorable legal claims” which she defines as an “[ability] to plead” the elements of a claim. See ante, at 340-41; see also ante, at 342 (stating that a claim is “colorable” if the plaintiff “can allege standing and the elements necessary to state a claim on which relief can be granted”). I do not understand what that concern has to do with this case. Here, the district court held, in an opinion to which Judge Clement makes no reference, that “the class representatives — like all class members — allege economic and/or property damage stemming directly from the Deepwater Horizon spill.” In re Oil Spill by Oil Rig Deepwater Horizon in Gulf of Mexico, on April 20, 2010, 910 F.Supp.2d at 915 (emphasis added). And the district court went on to say that, under the class definitions, “persons with marginal or potentially worthless claims ... [are] excluded.” Id. at 917; see also id. at 917 (stating that the “class in this case consists exclusively of individuals and businesses that have already suffered economic loss”). Nobody has appealed from this finding that the class members here allege losses stemming directly from BP’s conduct. Judge Clement’s dicta are divorced from the facts and issues in this case.

Turning, very briefly, to Judge Clement’s legal pronouncements, I must say that I respectfully disagree with her statement that a court cannot allow a single person lacking a “colorable claim” against a class-action defendant to recover compensation in a class-action settlement because to do so would “ignore[ ] the standing requirement of Article III and create[ ] a substantive right where none existed before.” Ante, at 341. This analysis confuses the relevant legal principles, is not supported by any law from our circuit or others, and would cause our circuit to split with at least three of our sister circuits if it were binding. First, although Judge Clement leans heavily on a dissenting *359opinion in the Third Circuit’s Sullivan case, that dissent was joined by only a single other judge and its analysis was squarely rejected by the seven-judge majority. See Sullivan v. DB Invs., Inc., 667 F.3d 273, 305 (3d Cir.2011) (en banc); see also Rodriguez v. Nat’l City Bank, 726 F.3d 372, 377-79 (3d Cir.2013) (Jordan, J.) (“Sullivan instructed that assessing whether individual class members have viable claims is inappropriate in the context of reviewing a proposed settlement class.”). Second, although Judge Clement cites a decades-old Seventh Circuit decision, see ante, at 341-42, a more recent decision from that circuit rejects her analysis in no uncertain terms:

[The class-action defendant] argues that before certifying a class the district judge was required to determine which class members had suffered damages. But putting the cart before the horse in that way would vitiate the economies of class action procedure; in effect the trial would precede the certification. It is true that injury is a prerequisite to standing. But as long as one member of a certified class has a plausible claim to have suffered damages, the requirement of standing is satisfied.

Kohen v. Pac. Inv. Mgmt. Co. LLC, 571 F.3d 672, 676 (7th Cir.2009). And third, the analysis also conflicts with the Second Circuit’s. See In re Am. Int’l Grp., Inc. Sec. Litig., 689 F.3d 229, 243-44 (2d Cir.2012).

And, for the reasons explained at length in Sullivan, requiring a district court to ensure that every class-action settlement beneficiary has a “colorable” cause of action against the defendant is unworkable in practice. Should the district court require that every settlement beneficiary file a separate complaint consisting of individual allegations and that BP file separate motions to dismiss each of the complaints? I do not think it wise to mandate such an unwieldy and expensive undertaking when the parties settled precisely to avoid that sort of costly litigation. See Fed.R.Civ.P. 1 (the civil procedure rules “should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding”). Nor do I see how it is required by existing law.10

Lastly, Judge Clement’s theory rests on a false premise: the idea that every individual who benefits from a class-action settlement must or is deemed to have an independent cause of action against the class-action defendant. I do not think that is the case. In a simple non-class-action lawsuit between a single plaintiff and a single defendant, I am not aware of any rule that would prohibit the litigants from reaching a settlement in which the defendant agrees to make payment not to the plaintiff he has allegedly wronged but rather to, say, a favored charity instead. Should that happen, neither the law nor common sense presumes that the charity has an independent cause of action against the defendant. See, e.g., King v. Emp’rs Nat’l Ins. Co., 928 F.2d 1438, 1442 (5th Cir.1991) (discussing third-party beneficia*360ríes to settlement agreements). This basic principle seems no less applicable in the class-action context and to apply with no less force whether the settlement benefits a charity, one or more specifically enumerated individuals or entities, or a class of individuals or entities as defined by whatever characteristics the negotiating parties choose. See id. at 1442 (“In fact, there is no requirement that the third-party beneficiary even be specifically named in the contract.”); Montana v. United States, 124 F.3d 1269, 1273 (Fed.Cir.1997) (“The intended beneficiary need not be specifically or individually identified in the contract, but must fall within a class clearly intended to be benefitted thereby.”). In short, whether a settlement agreement arises in the class-action context or not, there seems to me no requirement that every beneficiary of the agreement have a “color-able” cause of action against the defendant.11

A fundamental flaw in Judge Clement’s analysis is that it conflates and fails to distinguish between, on the one hand, the legal requirements for certifying a class, see ante, at 341-42 (arguing that courts act unlawfully “[b]y including claimants in the class definition that lack colorable claims”), and, on the other hand, those for approving and enforcing a settlement agreement in the class-action context, see ante, at 343^44 (arguing that a class-action settlement “is unlawful” and cannot be approved if it grants compensation to businesses “that had not sustained losses”), assuming without explication that the former are coterminous with the latter. However, the distinction should not be elided: whether or not it is true that Rule 23 or another provision of law is violated by maintaining a class action including class members lacking “colorable” claims — one legal issue — it does not follow either way that the court’s approval or enforcement of a settlement that benefits persons without “color-able” claims violates any law-a distinct legal issue. See, e.g., Denney v. Deutsche Bank AG, 443 F.3d 253, 268-76 (2d Cir.2006) (addressing separately the class certification and settlement approval issues); cf. Messner v. Northshore Univ. Health-System, 669 F.3d 802, 824 (7th Cir.2012) (“[The class-action defendant] argu[es] that the class for which certification is requested is fatally overbroad because it contains members who could not have been harmed by any post-merger price increases.... This [issue] is critical for class certification purposes.”) (emphasis added). Without embracing either of Judge Clement’s propositions, because neither are presented to this panel for decision, any discussion of them will not be furthered by conflating one for the other as she does here.

B.

BP twice sought a preliminary injunction from the district court and was twice denied. Thereafter, BP sought both a stay pending appeal and a preliminary injunction from this court, which were also denied. I see no reason to reverse any of these decisions. The majority opinion, however, purports to reverse the district court’s denial of a preliminary injunction and appears to “instruct the district court to expeditiously craft a narrowly-tailored injunction” that allows the claims of “those who experienced actual injury traceable to loss from the Deepwater Horizon accident” to proceed while staying the claims of “those who did not.” Ante, at 345. Because the majority opinion’s instruction to the district court regarding the injunction *361appears to be based on Judge Clement’s separate opinion concerning class-action law, that instruction does not appear to be based on a majority vote of this panel. Moreover, for the same reasons I discussed in the foregoing sections of this opinion, this appellate court may not modify the terms and conditions of the district court’s consent decree or order the district court to do so; and this court cannot use material outside of the four corners of the consent decree to reinterpret that decree. Consequently, it would be clear legal error for this court to assume that it has jurisdiction and authority to impose on the Administrator the requirement that, in addition to identifying a claimant as eligible and entitled to compensation for business economic loss under the consent decree encompassing the parties’ settlement agreement, he must also find independently that the claimant is not one of “those who [did not] experience[] actual injury traceable to loss from the Deepwater Horizon accident” before paying the claim. Such an injunction would be broader than the alleged purpose of the remand and tantamount to modifying the consent decree for the benefit of one of the parties, BP, without that party carrying its burden to show a change in circumstances or law that warrants changing the decree; or else to interpreting the consent decree based on material or purposes not stated within the four corners of the consent decree.

CONCLUSION

For these reasons, I concur in the majority’s affirmance of the district court’s dismissal of BP’s suit against the Administrator for failure to state a claim under Rule 12(b)(6) but I respectfully dissent from the majority opinion in all other respects.

. The settlement also entitled BP to walk away from the parties’ agreement prior to final approval if too many plaintiffs opted out. BP never availed itself of this right, instead actively seeking the district court’s final approval.

. On May 2, 2012, the parties entered into a settlement agreement that was preliminarily approved by the district court. In its preliminary-approval order, the court ordered the Administrator to commence the settlement program under the terms of the settlement agreement. The substance, terms, and conditions of the May 2, 2012 preliminary settlement agreement are identical to those that the district court finally approved and made part of its consent decree on December 21, 2012.

.The majority thus omits significant parts of Mr. Hacker’s affidavit. A complete and accurate reading of his affidavit makes clear that the Administrator and his team were using the data provided by each claimant from its business records, regardless of whether it had been kept by cash-method or accrual-method accounting. Moreover, the fragment that the majority does quote demonstrates that the settlement program would “follow up with claimants to better understand significant outliers” and “analyze the accuracy, validity and authenticity of outlier items.” R. 18336. It would have been unreasonable for BP to have taken from this any representation that "the accountants were making Exhibit 4C calculations in accordance with the interpretations [BP] advances here.” Ante, at 339.

. It is unclear from the record whether this response from BP was sent on January 8 or 9 of 2013. BP proposed these modifications as part of its response to the December 16, 2012 request for a policy statement, which, according to an email from the Administrator's special counsel establishing a briefing schedule, was due on January 8, 2012. See R. 18388. However, in a later piece of correspondence from BP, the company refers to its January 9, 2012 response. See R. 18402.

. Rufo articulated these principles in the context of institutional-reform consent decrees. See id. However, the same principles apply to all consent decrees. See, e.g., Alexis Lichine & Cie v. Sacha A. Lichine Estate Selections, Ltd., 45 F.3d 582, 586 (1st Cir.1995) (“While Rufo was a case involving institutional reform, we do not read it as being confined in principle to such cases.”).

. In this regard, the majority does what Armour directs us not to do, viz., the majority defines the "purpose” of the settlement agreement from outside sources and then uses that "purpose” to interpret the consent decree. Nothing within the four corners of the consent decree indicates that the overriding purpose of the agreement, as the majority assumes, was to perfectly match revenue to the expenses that generated it. See Ante, at 338.

. "The Settlement recognizes six categories of damage: (1) specified types of economic loss for businesses and individuals, (2) specified types of real property damage (coastal, wetlands, and real property sales damage), (3) Vessel of Opportunity Charter Payment, (4) Vessel Physical Damage, (5) Subsistence Damage, and (6) the Seafood Compensation Program.” In re Oil Spill by Oil Rig Deepwater Horizon in Gulf of Mexico, on April 20, 2010, 910 F.Supp.2d 891, 903 (E.D.La.2012). Categories of damage other than business economic loss are not at issue in these appeals.

. For that matter, the federal government accepts, for tax purposes, submissions supported using a business’s data recorded using cash-basis accounting so long as such accounting has consistently been used in the ordinary course of business. See 26 U.S.C. § 446(a) ("Taxable income shall be computed under the method of accounting on the basis of which the taxpayer regularly computes his income in keeping his books.”).

. The April 18, 2012 version of the settlement contained a requirement that accounting professionals seeking reimbursement for their services certify that they submitted their reimbursement request "in compliance with generally accepted accounting principles” ("GAAP”), a requirement which was subsequently removed from the May 2, 2012 version that was approved by the district court. Compare R. 2445 (April 18, 2012 version), with R. 3955 (May 2, 2012 version). BP knew how to insist that claims abide by GAAP but failed to do so, suggesting that it understood that claims could be submitted based on documents prepared using cash-method accounting. See CPA Societies’ Amicus Br. at 6.

. I certainly do not see how it is required by the law of standing. It is hornbook law that, “[i]n class action cases, the standing inquiry focuses on the class representatives. The class representatives must have individual standing in order to sue.... [T]he representative need not prove that each member of the class has standing.” William B. Rubenstein, Newberg on Class Actions § 2:1 (5th ed.) (collecting cases in omitted footnotes); see, e.g., Kohen, 571 F.3d at 676 ("It is true that injury is a prerequisite to standing. But as long as one member of a certified class has a plausible claim to have suffered damages, the requirement of standing is satisfied.”); Denney v. Deutsche Bank AG, 443 F.3d 253, 263 (2d Cir.2006) (“We do not require that each member of a class submit evidence of personal standing.”).

. This is not to say that the parties here intended to benefit third parties lacking viable causes of action; rather, the point is that there is no legal reason to inquire into whether the settlement benefits persons lacking viable causes of action.