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Arbitration in Louisiana – Another Budding Romance?

Are Louisiana courts as enamored with arbitration as their Texas counterparts? Looks like it. East of the Sabine, submitting your dispute to arbitration means you are pretty much saying adieu, farewell and bye-bye to...more

Court rejects contractor’s mechanic’s lien because of ‘intent’

The Illinois Court of Appeals’ recent decision in AUI Construction Group, LLC v. Vaessen highlights the need for careful planning in structuring development agreements, construction contracts, and the use of an easement as...more

Third Circuit Upholds The Enforceability Of Make-Whole Premiums In Post-Bankruptcy Context

In a recent November 17, 2016 opinion, Delaware Trust Co. v. Energy Future Intermediate Holding Company LLC, Case No. 16-1351, the Third Circuit Court of Appeals reversed two lower court opinions by holding that make-whole...more

EFIH Noteholders Find Redemption for the Payment of Make-Whole Premiums

On November 17, 2016, the United States Court of Appeals for the Third Circuit issued a decision in which it held that holders of first lien notes and second lien notes of Energy Future Intermediate Holding Company LLC and...more

Act Now To Preserve Your Section 1603 Grant

In Depth - We recently reported that on October 31, 2016, the US Court of Federal Claims issued its opinion in Alta Wind I Owner v. United States, in which the court determined that the value of the property eligible for...more

Court Awards $206 Million to Alta Wind Projects in Section 1603 Grant Litigation; Smaller Award to Biomass Facility

The US Court of Federal Claims awarded damages of more than $206 million to Plaintiffs/applicants in a case with respect to the cash grant under Section 1603 of the American Recovery and Reinvestment Act of 2009 (Public Law...more

Recent Development in Retail Power and Contracting with Texas Governmental Entities

A Texas Court of Appeals recently rejected a retail electric provider’s attempt to sue a Texas public school district for breach of contract—holding that the then-effective supply contract at issue was void and that the...more

ITC Section 337 Update – October 2016

Commission Suspends ‘939 Investigation Enforcement Pending PTAB Result - On July 21, 2016, the International Trade Commission (“the Commission”) issued a notice that it had found a violation of Section 337 in Certain Cinema...more

Dutch Collective Actions vs. Collective Settlements

As U.S. law has become less willing to entertain certain types of lawsuits on behalf of worldwide classes of plaintiffs, litigants have looked for other forums that might allow the prosecution – or at least the resolution –...more

Energy Newsletter - October 2016

Negotiating an In-Project Construction Dispute - Many thorny and competing interests are implicated when an ongoing major construction project experiences an unanticipated event that impacts the project schedule or...more

In Alabama, Sewage is NOT a Pollutant Falling Within the Pollution Exclusion in a Commercial General Liability Policy

Pollution exclusion clauses are an insurance industry staple and are often contained in commercial general liability insurance policies. While one might think that raw sewage would be considered a pollutant, under current...more

The Eighth Circuit Extinguishes Claims of Continuing Conduct in Propane Tank Conspiracy

Before plaintiffs could light the pilot on antitrust claims against two propane tank distributors, a split Eighth Circuit panel cut the gas. In doing so, the majority espoused a narrow view of the applicability of the...more

DC Circuit Denies Sierra Club Appeal of FERC Authorization of Two LNG Facilities

Since 2012, the major opponent of new large-scale liquefied natural gas (LNG) export projects has been the Sierra Club. The Sierra Club has adopted a two-pronged approach in its opposition to LNG exports projects, opposing...more

Back to the Bulgarian Bad Guy, So Say the Justices

My blogging sensei Cordell Parvin says the title should always inform the reader of the content. Mea culpa on this one; I couldn’t resist the alliterations. Some time back I reported on Carlton Energy Group et al v....more

Do Not Pass Go: FERC Administrative Proceedings Remain First Stop for Market Manipulation Claims under the Natural Gas Act

Fraud and energy market manipulation have remained priorities of the Federal Energy Regulatory Commission’s Office of Enforcement (OE) over the past several years. The agency has ramped up its investigative efforts, reporting...more

Louisiana Partition Agreement: You Can’t Trade What You Don’t Own

Square Mile Energy LLC v. Pommier considered this language in a Louisiana partition agreement: “N.B: Included in this transfer are any and all mineral rights, when available, to Roxanne and all surface rights.” Did this...more

Five Key Takeaways from Key Energy’s SEC FCPA Settlement

The SEC, last week, announced its $5 million settlement with Key Energy. As always, FCPA settlements contain important examples of enforcement priorities and policies. Key Energy’s recent settlement is an example of the...more

Control-of-Well Insurance: The Words of the Policy Control

Gemini Insurance Company at al v. Drilling Risk Management Inc construed control-of-well and redrill/extra-expense provisions in an insurance contract. The question and the rule - The question was whether an...more

Court of Appeal Lifts Stay in Cross Border Class Action

In Kaynes v. BP [1] (referred to herein as “Kaynes”) the Court of Appeal for Ontario (“ONCA”) recently lifted a stay of a class proceeding in which the Plaintiff is seeking damages for alleged misrepresentations made to...more

Second Circuit Affirmed Enforcement of ICC Arbitral Award Annulled Abroad

Decision confirming an arbitral award annulled in Mexico, underscores US courts’ pro-enforcement position and highlights different approaches undertaken by courts around the world. On August 2, 2016, the United States...more

Forgery May Not Constitute “Theft” Under an Employee Dishonesty Coverage

Ruling in favor of the insurer on a motion for summary judgment, on July 29, 2016 the Fifth Circuit Court of Appeals held that under the terms of a commercial crime policy, proof of a forgery by the insured’s employee in...more

Tenth Circuit Drills Down Into Roots Of Moral Hazard, Comes Up Dry

Moral hazard (one of this blog’s preoccupations) usually comes up in disputes over the scope of coverage under an insurance policy. But state legislatures often address it, too—for example, by imposing limits on agreements...more

Shareholders Will Get to Trial in Petrobras Corruption Scandal Action

Yesterday I wrote about what may well be the next great bribery and corruption scandal across the globe involving the Venezuelan state oil company Petroleos de Venezuela SA (PDVSA). However, the current largest corruption...more

Midstream Contracts Remain in Doubt in Bankruptcy

By now, both producers and midstream companies are aware of the Bankruptcy Court decisions in the Sabine bankruptcy proceedings (i) rejecting the gas gathering agreements as executory contracts and (ii) determining that the...more

Colorado Court Applies Notice-Prejudice Rule to Pollution Buy-Back Endorsement

In its recent decision in MarkWest Energy Partners, L.P. v. Zurich American Insurance Co., 2016 Colo. App. LEXIS 956 (Colo. App. July 14, 2016), the Court of Appeals of Colorado had occasion to consider whether Colorado’s...more

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