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The D.C. Circuit Remands FERC Order Denying Refunds for Changes to Cost Allocation

On December 5, 2014, the United States Court of Appeals for the D.C. Circuit remanded an order of the Federal Energy Regulatory Commission (FERC) denying refunds to certain Louisiana-based utility companies for rates that...more

Class Actions Can Strain Retail Electric Providers

In August 2014, a putative class action suit was brought against Ambit Energy Holdings LLC, Ambit Texas, LLC, Ambit Northeast LLC, and Ambit New York, LLC (collectively, “Ambit”) in New Jersey federal district court. Class...more

Court Considers Unreasonably Withholding Consent under CAPL Operating Procedure in Precedent-Setting Decision

In IFP Technologies (Canada) v Encana Midstream and Marketing, 2014 ABQB 470, the Court clarified for the first time the circumstances in which a party that waives its right of first refusal under Article 24 of the 1990 CAPL...more

Letters of credit, on-demand bonds, and the "fraud exception"

On the 9th of September 2014, the Privy Council in the United Kingdom delivered a judgment in Alternative Power Solution Ltd. v. Central Electricity Board reaffirming the established principle that, other than in cases of...more

Avoid the Oral Agreement

Cresson SWD Services, L.P. vs. Basic Energy Services, L.P. is a warning about the perils of an oral agreement for a risky downhole procedure. Cresson hired Basic to make improvements on a saltwater disposal well by deepening...more

5th Circuit Denies Louisiana Public Service Commission’s Petition for Review of FERC’s Entergy Bandwidth Implementation Orders

On November 14, 2014, the U.S. Court of Appeals for the 5th Circuit denied the Louisiana Public Service Commission’s (LPSC) petition for review of various Federal Energy Regulatory Commission (FERC) orders on the...more

Pennsylvania Tax Developments - A Reed Smith Quarterly Update: November 2014

This is a brief update on recent Pennsylvania tax developments. Does New Governor Mean More Tax Reform? In the recent gubernatorial election, challenger Tom Wolf (D) defeated incumbent Governor Tom Corbett (R)....more

Avoiding “Gotcha” Moments: Excusing Non-Production to Address Mechanical Issues Under the Temporary Cessation of Production...

In Landover Production Company, LLC v. Endeavor Energy Resources, L.P., et al., the Texas Court of Appeals re-affirmed the application of the implied, “temporary cessation of production doctrine” to prevent an oil and gas...more

Courts Uphold Supplemental Assessment of Wells and Related Facilities/Improvements; and Validate Use of Cost Approach

The County of Kern Tax Assessor’s (“Assessor”) use of the cost approach to value to appraise new oil and gas wells for the purpose of levying supplemental assessments has been upheld by the Fifth District Court of Appeal. In...more

Proving An Operator’s Gross Negligence: Is Intention Required?

Establishing an operator’s gross negligence requires “a degree of intentionality”, the Alberta Court of Queen’s Bench recently held in Bernum Petroleum Ltd v Birch Lake Energy Inc, 2014 ABQB 652 [Bernum]....more

A Cautionary Tale: English Courts Further Depart from a Traditional Approach to Liquidated Damages in Unaoil v Leighton

In September 2014, the Commercial Court handed down an unprecedented decision, finding that a liquidated damages ("LD") clause in a contract was a "genuine pre-estimate of loss" at the time the parties entered into the...more

Paris Energy Series No. 7: Take-or-Pay Conditions in Gas Supply Agreements

Take-or-pay provisions are now fairly common in long-term offtake and supply agreements in the energy sector, a notable example being gas supply agreements. In essence, take-or-pay provisions provide that a buyer must...more

News Flash: Cap-and-Trade Remains the Most Efficient Way to Reduce Emissions

Notwithstanding Congressional gridlock on climate change legislation, cap-and-trade remains the tried and true efficient method for reducing air emissions. Although the acid rain provisions of the Clean Air Act are the most...more

An Update on Recent Oil- and Gas-Related Decisions in Ohio

Due to increased drilling activity in the Utica shale formation, state and federal courts in Ohio and the 6th Circuit have recently issued decisions related to local drilling regulations, drilling permits, leasing, indemnity...more

Delay Strikes Down Another Plaintiff

Why am I always reporting on plaintiffs who wait too long to file their lawsuit? In the latest Texas case, Trahan v. Mettlen, the Trahans sued in 2010 on a 2006 warranty deed....more

Lessons Learned from the Fourth Circuit’s Decision to Vacate Class Certification in Coalbed Methane Royalty Underpayment Cases

As oil and gas production continues to increase domestically, the possibility for class action exposure is an increasing concern. The United States Court of Appeals for the Fourth Circuit recently issued its decision in EQT...more

Ohio Appeals Court Finds Leases To Be Valid

On September 26, 2014, the Ohio Court of Appeals for the Seventh District issued its opinion rejecting a trial court opinion in a statewide class action that had invalidated thousands of oil and gas leases based on a commonly...more

"Opening shot" in negotiations: when does "without prejudice" protection apply?

In Rochester Resources Ltd & ors v Leonid Lebedev & anr [2014] EWHC 2185 (Comm), 2 July 2014, the High Court found that a draft set of Particulars (a Complaint), produced in advance of U.S. Litigation and sent to the other...more

Insurance Recovery Law - September 2014

Pollution Exclusion Doesn’t Bar Coverage for Worker Exposed to Hazardous Chemicals That Were Not “Dispersed”: Why it matters - A federal district court in Texas strictly construed a pollution exclusion in...more

What Does “Sprawling Litigation” Look Like?

It looks like what you’d expect: a bunch of litigants spending lots of time at a courthouse in Goliad, Texas, with no end in sight. After much ”sprawl” in Harkins v. Northshore Energy it came down to the meaning of this...more

North Dakota Good Faith Purchasers: At What Point is Notice Relevant?

The Question - In order to be a good faith purchaser, a party must not have actual or constructive notice of another’s rights. Northern Oil and Gas v. Creighton asked, When should the determination of whether a party...more

Some PURPA Qualifying Facilities are More Qualified Than Others

In a fascinating decision last week, a divided panel of the 5th Circuit Court of Appeals held that the Texas Public Utilities Commission had authority to limit the universe of “Qualifying Facilities” under the Public...more

Fifth Circuit Allows Texas Commission to Limit PURPA Sales

On September 8, 2014, the U.S. Court of Appeals for the Fifth Circuit dealt a blow to Exelon Corp. (“Exelon”), rejecting challenges by various Exelon wind-generating entities to a Texas Public Utility Commission (PUCT)...more

Fifth Circuit Holds that Texas Public Utility Commission Can Limit Ability of Intermittent Wind Generators to Sell Their Power...

On September 8, 2014, the United States Court of Appeals for the Fifth Circuit (“Fifth Circuit”), in a 2-1 decision, reversed an opinion by the United States District Court for the Western District of Texas (“District Court”)...more

Subcontractors Score a Victory in Federal Court

On August 27, in In re Heritage Consolidated, L.L.C., the Fifth Circuit Court of Appeals granted subcontractor’s lien rights to two oil and gas drilling contractors. The Court reversed a district court ruling which upheld a...more

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