United States > Industry focus > Energy: litigation
Index of tables
Mark Glasser and Mark Robeck chair Baker Botts L.L.P.‘s litigation practice, which certainly ranks with the best. Originally focused on oil and gas producers, the practice now represents the full spectrum of players in the energy space. It represented CenterPoint Energy Houston Electric before the Texas Supreme Court in a statutory construction matter relating to the right of corporate successors to a prior integrated utility to recover stranded costs and other associated costs under the Texas Electric Choice Act with a resulting judgment of over $1bn in CenterPoint’s favor. The team also acted for CenterPoint before the Public Utility Commission of Texas (PUCT) (on remand) where it successfully negotiated a $1.7bn recovery in stranded costs. It is also representing ExxonMobil in an action filed against the federal government under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) asserting governmental liability, in whole or in part, for ExxonMobil’s past and future cleanup costs for contamination occurring during wartime operations of its Baytown, TX facility. ExxonMobil has spent approximately $40m in investigation and remediation. In the renewables space, the practice is representing the defendants – BP Alternative North America, BP Wind Energy North America, Silver Star I Power Partners, Silver Star II Power Partners and Clipper Windpower Development – against a tort action brought by private landowner, Bob Ladd, claiming that the construction and operation of the 24-turbine Silver Star I wind farm created various nuisances, including visual nuisance, and that Silver Star II might do likewise. Summary judgments were requested to dismiss all defendants except Silver Star I; and to dismiss all nuisance claims save for those relating to noise, shadow and flicker effects, and blinking red lights. The motions were granted and agreement was reached with the plaintiff to sever and abate the remaining claims, whereby, if the plaintiff does not obtain a reversal of the summary judgment for the visual nuisance claim on appeal, then all previously severed claims must be dismissed with prejudice. Among other matters, the team is representing Marathon Oil in a declaratory judgment action to determine liability costs for decommissioning in Alaska. Houston-based Stephen Tipps and Bill Kroger are ‘exceptional’ litigators and advisors. Thomas Eastment, who is based in Washington DC, is well known for representing oil and gas pipeline owners, shippers, and producers; and Greg Copeland and Jennifer Smith are also recommended. All recommended individuals are based in Houston, except where noted otherwise.
Bracewell & Giuliani LLP represents a diverse client base, acting for electric and cogeneration power producers, hydro-power companies, and nuclear, oil and gas, and exploration and production players. It continues to grow its practice and clients include Anadarko, Direct Energy, Topaz Power, Chesapeake Energy, and Plains Exploration & Production. In Bud and Sue Frashier Family Trust, Derivatively On Behalf of Anadarko Petroleum Corporation v James T Hackett, et al, the team successfully represented eight of the nine board members of Anadarko against alleged breaches of fiduciary duties with respect to the board’s actions leading up to and following the Deepwater Horizon explosion. The group is currently representing Kinder Morgan Treating in two class action lawsuits in which plaintiffs allege, inter alia, nuisance and trespass relating to the operation of two natural gas compressor stations. The team is also acting as national counsel for Baker Hughes in hydraulic fracturing litigation, with one case pending in the Pennsylvania Court of Common Pleas (Bradford County) and another in the Southern District of West Virginia. The team is based in Houston and six other offices. Firm-wide litigation head Glenn Ballard and energy litigation head Stephen Crain are recommended, as are partners Paul Fox, Deanna King, J Clifford Gunter, Shelby Kelley, and Sandra Rizzo.
Covington & Burling LLP has a superb dispute resolution practice in the oil and gas space, and over 50 years’ experience in the energy sector. Recently, the team has been particularly active in international arbitrations and, for example, is representing ExxonMobil subsidiaries in a multibillion-dollar ICSID arbitration against Venezuela for repudiation of government incentives and expropriation of the claimants’ investments in Venezuela. The team also successfully represented ExxonMobil subsidiary Mobil Cerro Negro in ICC arbitration wherein it was found that Venezuela was contractually obligated to indemnify Mobil for expropriation of its investment. In litigation, the team is representing American Petroleum Institute, Independent Petroleum Association of America, US Oil and Gas Association, International Association of Drilling Contractors, and International Association of Geophysical Contractors as intervenors on the side of the US government, with each one appearing in one or more of seven cases filed in the Southern District of Alabama, the Washington DC district court, the Eastern District of Louisiana, and the Fifth and Eleventh Circuit Courts of Appeals by various environmental organizations challenging the government’s approvals of offshore oil and gas lease sales, exploration plans, and development plans following the Deepwater Horizon explosion. Claims have been made under the National Environmental Policy Act, Administrative Procedure Act, Outer Continental Shelf Lands Act, and the Endangered Species Act. T L Cubbage co-chairs the practice with Steven Rosenbaum, who is recommended for his superb drafting skills, integrity, and high degree of credibility before the courts. William Massey is also recommended, as is arbitration expert Oscar Garibaldi. Miguel López Forastier has been promoted to partner.
Fulbright & Jaworski LLP‘s highly regarded practice represents major US and international companies in the (upstream, midstream and downstream) oil and gas, power, renewables, and mining spaces in litigation and arbitration proceedings. The practice is led from Houston with support from colleagues in other offices. The practice, which has expertise in matters relating to class certification, defended numerous oil companies in a consolidated MDL brought by over 1m plaintiffs alleging underpaid royalties and working interests wherein court approved a settlement class. The team also defeated a motion for nationwide class certification of royalty and working interest owners alleging the natural gas pipelines had systematically under-measured gas. William Wood, who won a complete defense verdict in a case where holders of an oil and gas interest in undeveloped lands claimed damages exceeding $50m, co-heads the practice with Daniel McClure, who also heads the firm-wide class action group and focuses on the oil and gas space. Denver-based Poe Leggette‘s practice focuses on judicial and administrative litigation concerning the development of natural resources on federal and Native American lands and is recommended along with of counsel Osbourne Dykes III.
The boutique firm of Gibbs & Bruns LLP is among the top commercial litigation firms in Houston and brings this expertise into the energy space, where it is often used in high-stakes matters. The team represented defendant ConocoPhillips in a contract dispute before the Texas Supreme Court arising from the auction sale of ConocoPhillips’ natural gas pipelines and processing plants. The plaintiff, WTG Gas Processing (WTG), alleged it had an oral contract with ConocoPhillips to purchase the assets, which were sold to Targa. WTG sought damages for breach of contract, fraud, and negligent misrepresentation, and filed further claims alleging tortious interference with a contract or prospective business relationship with ConocoPhillips’ financial adviser (Morgan Stanley, as was) and Targa, claiming Targa had knowledge of the pre-existing contract. Summary judgment was granted for the defendants at first instance, following which the Court of Appeals affirmed dismissal of all claims against ConocoPhillips on the basis that the client negated the existence of any contract with WTG and that WTG’s evidence was insufficient as a matter of law. WTG was denied a review by the Supreme Court of Texas, following a full briefing. It also acted for counter-defendants matrix Petroleum, Talisman Energy USA, and Statoil USA in a trust dispute relating to a multi-party title dispute over 7,000 acres of land in the Eagle Ford shale region with final summary judgment granted in the clients’ favor. Senior partner Grant Harvey, managing partner Scott Humphries, and Sam Cruse III are recommended for their ‘excellent trial qualities and commitment to the needs of their clients’. Founding partner Robbin Gibbs and senior partner Barrett Reasoner are also recommended.
King & Spalding LLP provides ‘excellent service with sound advice’ through its ‘strong, well diversified, and refreshing’ team, which has notable expertise in international arbitrations, particularly those involving bilateral investment treaties. It recently represented Chevron in one of the largest ever international arbitrations, in which it filed against Ecuador alleging breaches of settlement and release agreements relating to environmental remediation claims for historic petroleum production activities and a proposed $27bn judgment against Chevron in an Ecuadorian court. The firm also made representations under the US-Ecuador bilateral investment treaty for claims of due process and procedural violations by Ecuador in initial proceedings. The tribunal granted Chevron’s interim request for Ecuador to take all necessary measures to prevent enforcement of an Ecuadorian order. The team is currently challenging the Ecuadorian proceedings in The Hague and in parallel domestic proceedings relating to the enforceability of the Ecuadorian judgment. It is also defending Chevron in numerous state and federal court cases, most of which form part of an MDL by plaintiffs seeking multimillion-dollar treatment and punitive damages alleging water contamination by the gasoline additive MTBE. Other clients include Anadarko, ConocoPhillips, Edison Mission Company, Shell Oil, Occidental Petroleum, and Halliburton. Managing partner and practice head Robert Meadows is a leading trial lawyer and the persistent Penn Huston is also recommended. Reagan Simpson left the firm.
Steptoe & Johnson LLP‘s service is ‘at the top of expectations’. Globally minded Doug Green has ‘superior analytical skills and a statesman-like approach’, and David Raskin is a ‘go-getter’ litigator whose advice is ‘tempered by wisdom‘; both are recommended for their work in the electricity sector. The team is representing Southern California Edison as leader of a coalition of California utilities and agencies in ongoing litigation arising from the 2000-2001 California blackout and has served as lead negotiator for numerous settlements with Enron and others totaling approximately $4bn. Richard Roberts, a regulatory expert and ‘a superb litigator’, is leading the team representing Public Service Electric and Gas and PSEG Power in federal litigation against New Jersey alleging that the state’s recently enacted long-term capacity agreement pilot program law is unconstitutional, based on pre-emption by the Federal Power Act and that it violates the commerce clause. Other states are considering laws similar to New Jersey’s and this matter is likely to be precedent setting. The team also continues to advise carrier ConocoPhillips in ongoing TAPS-related litigation and appeals; these included the firm leading, and Steven Reed arguing, the case for the carriers on issues relating to TAPS carriers’ interstate rates before the DC Circuit Court of Appeals. Reed, Steven Brose and Daniel Poynor are recommended for their expertise in pipeline matters.
Vinson & Elkins L.L.P. is ‘at the top of the pyramid’ for oil and gas disputes. Its lawyers are ‘excellent at mastering complex facts’, provide tailored advice, and show ‘tremendous business acumen’. The team acts for players across the industry, including Shell Oil, Shell International Trading and Shipping, Shell International Trading and Development, Anadarko, Duke Energy, and Plains All American Pipeline. In Davis v Duncan Energy Partners LP, the team successfully defeated merger challenge lawsuits filed before state and federal courts, which sought to enjoin Enterprise Products Partners from its $2.5bn acquisition of Duncan Energy. The team is also advising various clients in environmental and tort lawsuits relating to hydraulic fracturing, and class action and qui tam litigation regarding royalties. James Thompson III and practice leader Guy Lipe are ‘excellent’ trial attorneys. Matthew Stammel, who was recently promoted to partner, is an ‘outstanding, first-rate litigator’ who provides ‘top-notch, cost-conscious’ advice. Karl Stern and Mark Rodriguez are also recommended. Appellate practice group co-head Marie Yeates is recommended for her ‘wonderful’ appellate work, and is an ‘excellent’ advocate.
Gibson Dunn‘s energy litigation practice is able to draw on the considerable expertise of the firm’s finance and transactional practices to handle shareholder and derivative disputes in the energy sector. For example, it represented a special committee of the board of directors of BP in shareholder derivative litigation relating to environmental and worker safety incidents at its Texas City refinery, a case in which the Galveston federal district court dismissed all claims. The team also represented Southern California Gas in a matter against the City of Alhambra, CA, wherein the federal district court in Los Angeles held that the city violated the contracts clause by enacting an ordinance imposing new fees on utility companies excavating in its streets because the company already had a franchise agreement with the city and pays annual fees for the same rights. The team also has strength in cross-border and international matters and recently obtained a preliminary injunction against the defendants (Ecuadorian plaintiffs and their counsel in related proceedings) in a RICO suit filed in the Southern District of New York, barring the defendants from seeking to enforce an $18bn-plus judgment rendered by the Ecuadorian court. New York-based William Campbell, Steve Buffone and Nicholas Politan Jr co-chair the group.
Kirkland & Ellis LLP leverages the firm’s overall litigation expertise to represent oil and gas clients across the gamut of energy litigation matters. The team acts for key client BP in a variety of cases, including antitrust, royalty, and public and consumer class actions. The Chicago-based team, led by leading lawyer Richard Godfrey, continues to act as BP’s lead counsel in In Re Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico on April 20, 2010, as well as related lawsuits and the case opened by the Marine Board of Investigation. The team is also defending Spanish and Argentinian oil and gas companies, Repsol and YPF, against fraudulent conveyance and alter ego claims relating to a US subsidiary. This action was initiated by the New Jersey Department of Environmental Protection and is currently being heard in the New Jersey Superior Courts. The firm also acts extensively for ExxonMobil, and other notable clients include Calpine, ConocoPhillips, and Hoosier Energy.
Morgan Lewis advises major multinational oil and gas companies and domestic utilities, and is well known for its niche expertise in the nuclear sector. The team successfully represented Southern California Edison in an appeal brought by the US Department of Energy (DOE) in the Federal Circuit, which affirmed the lower court’s award of $142m to the client for the DOE’s failure to accept spent nuclear fuel for disposal in accordance with a government contract. The team also represents the majority of other domestic nuclear utilities, including (inter alia) Portland General Electric, Exelon, Dominion, and Constellation, in similar actions and has secured over $1bn (aggregate) for its clients. In addition, it is representing ExxonMobil in parallel state and federal litigation brought by the City and County of San Francisco alleging historic soil and groundwater contamination by Mobil Oil in Fisherman’s Wharf from a diesel fueling terminal, and is also representing ExxonMobil in related private party proceedings. The team is also acting for a defendant in the Deepwater Horizon class action, and is representing a major oil company in multiple suits alleging petroleum contamination of a residential area near Los Angeles. Washington DC-based Brad Fagg heads the team. He and Los Angeles-based managing partner David Schrader are recommended.
Morrison & Foerster LLP advises clients in the LNG, renewables, pipelines and nuclear spaces, and is run from the firm’s Washington DC and California offices. The team is advising Sempra Energy in the matter of Sanchez Ritchie v Sempra Energy in the Southern District of California. Ritchie, a Mexican citizen, alleged (inter alia) that Sempra bribed Mexican authorities and engaged in improper activity thereby denying his real property rights, damaging his real and personal property, and having him wrongfully arrested by the Mexican authorities to further Sempra’s construction of an LNG terminal in Baja California, Mexico. The court found that all damages in the complaint resulted from action by the Mexican authorities, who acted on privileged communications made by Sempra. The court granted Sempra’s motion to dismiss, but did so without prejudice and with leave to amend. The plaintiff has amended the complaint and the proceedings are ongoing. It is advising the DOE on litigation risk for assessing whether to grant a loan guarantee to High Plains Ranch II, the project developer for the California Solar Ranch Project in San Luis Obispo County, in light of a lawsuit filed by a local citizen and two environmental groups seeking an order to invalidate project approvals and prevent development. Senior counsel Robert Loeffler in Washington DC co-heads the group with new arrival Dian Grueneich in San Francisco, who is a former Commissioner at the California Public Utilities Commission.
Sidley Austin LLP‘s Washington DC-based energy litigation practice focuses on oil and gas matters. It is advising PG&E in state and appellate court cases stemming from the 2000-2001 California energy crisis, as well as in FERC proceedings. PG&E was the largest buyer of power at the time of the blackout and is seeking to recover overcharges from sellers resulting from the sustained price spikes. With billions of dollars still at issue, the team is leading the litigation for PG&E, and has achieved successful appeals at the DC and Ninth Circuit Courts of Appeals, spawning hundreds of petitions for review in the Ninth Circuit. There is also a pending trial at the FERC and a judgment in a related action tried in the Court of Federal Claims remains outstanding. The team also provides broad-ranging representation for key client ExxonMobil in appellate litigation and arbitration. Global practice coordinator Eugene Elrod and William Williams are recommended.
Thompson & Knight LLP‘s ‘great’ oil and gas litigation practice is run by the firm’s Dallas, Houston and Austin offices with Dallas-based Craig Haynes leading the team. It advises clients in arbitration and in federal, state, and appellate courts on wide-ranging energy-related disputes such as fraud, improper payment of royalties (including qui tam actions), force majeure, and various tort and other contractual issues. The team represented Hunt Oil in Hunt Oil Co v Live Oak Energy Inc. At first instance, a jury had found that Hunt Oil was negligent in its drilling practices in East Haynesville, Louisiana, and awarded Live Oak over $5m in damages. However the Texas Court of Appeals, Fifth District, found that the statute of limitations had run on Live Oak’s claim and accordingly reversed the trial court’s judgment. Live Oak petitioned the Texas Supreme Court for review, which is pending. The team is also representing 16 plaintiffs seeking, inter alia, actual and punitive damages arising from their collective investment of more than $14m in an unsuccessful oil and gas project. Four judgments have been rendered against eight of the defendants, resulting in over $100m in damages being awarded. Dallas-based partners Greg Curry and Andrew Derman are recommended, as is Austin-based of counsel Becky Jolin.
White & Case LLP splits its practice between its New York and Washington DC offices and advises clients in litigation and arbitration matters in the electricity and oil and gas spaces. As M&A and lead litigation counsel for Hess Corporation, the firm successfully defeated state and federal suits for shareholder class action certification brought in Nevada and Colorado challenging Hess’s $458m acquisition of American Oil & Gas – an acquisition that bolstered Hess’s position in the Bakken shale play by 85,000 acres. The team also has significant strength in US litigation with an international element. For example, it successfully won dismissal of private plaintiffs’ antitrust class action lawsuit filed in the Fifth Circuit Court of Appeals alleging that clients Saudi Aramco and its US subsidiaries and affiliates conspired with OPEC, among others, for the purposes of price-fixing. It also represented Russian oil company TNK-BP Holding in a multibillion-dollar RICO action in the Southern District of New York alleging a scheme between TNK-BP and others to dominate the Russian oil market (including allegations of misuse of the Russian judiciary). The Second Circuit Court of Appeals dismissed the action on the grounds that this type of non-US dispute was not reached by the statute, in so doing becoming the first Circuit Court to apply the US Supreme Court’s decision in Morrison v National Australia Bank Ltd. The team is overseen by global head of energy Arthur Scavone in New York, and Americas regional section head of energy Victor DeSantis in Washington DC.
Winston & Strawn LLP‘s practice is best known for its representation of utilities, both in the electricity and nuclear spaces, and continues to grow its presence in oil and gas. The practice was bolstered by the arrival of several litigators following the dissolution of Howrey LLP in 2011. The team is representing USGen New England in its ongoing bankruptcy dispute with TransCanada Pipelines, which brought a breach of contract action against USGen after the termination of its natural gas transportation contract with TransCanada after USGen entered bankruptcy. The bankruptcy court found that TransCanada had mitigated all but $3.4m of the $52m in damages claimed by reselling the pipeline capacity originally sold to USGen. The US District Court for the District of Maryland affirmed the bankruptcy court’s decision on appeal, but the matter is now subject to a further appeal in the Fourth Circuit Court of Appeals. The firm also represented Duke Energy in the South Carolina Administrative Law Court against the South Carolina Department of Health and Environmental Control (DHEC) in a re-licensing dispute relating to its hydroelectric power plants on the Catawba-Wateree River system, which is now being appealed by the DHEC and environmental groups. Practice chair Jerry Bloom in Los Angeles and Gordon Coffee in Washington DC are recommended.