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After half a decade of downturn in the crude oil market, there is hope of a brighter future: the latest predictions of the Energy Department say that the US will be a net energy exporter by 2022 due to surging natural gas exports, higher crude shipments and robust fuel flows. The boom in natural gas and LNG especially - enabled through hydraulic fracturing - is expected to become the driving force of the nation’s plans for energy independence. However, the current political transition under the Trump administration has led to uncertainty in the US power sector. In February 2018, the Federal Energy Regulatory Commission (FERC) dismissed Energy Secretary Rick Perry’s petition to subsidize coal-fired and nuclear power plants to maintain a 90-day supply of fuel on site. Perry’s proposal, which aimed to support the nation’s harried coal industry, was widely opposed by business and environmental groups. The commission rejected the administration’s claims for a need to improve the resilience of the national power grid by stating that there is no evidence for a loss of reliability due to the retirement of coal-fired power plants.

The current developments in the energy sector have prompted a variety of legal issues. On the oil and gas side, new infrastructure projects - such as pipelines, power plants and storage facilities - and the related FERC permitting processes have kept law firms busy. Contentious matters are often linked to royalty disputes, breach of contract claims, and procurement, engineering and construction disputes arising from energy projects. Law firms are wielding their expertise to address the increasing number of environmental, toxic tort and personal injury cases related to the oil and gas sector. Legal work in the conventional power realm was dominated by rate and tariff cases, as well as market manipulation claims. In the first half of 2017, the FERC did not have enough commissioners to field a quorum, which led to backlogs of energy projects and market proceedings. As a result, 2018 will likely see an increase in FERC activity and thus a spike in advisory work and litigation.

Deal activity proved robust in the power sector, with significant acquisitions of operating facilities in both conventional power and renewables. The convergence of traditional and new providers of electricity continued, with many conventional power companies financing and acquiring solar and wind plants. Another feature of the market has been the rapid advances in battery technology - although, as yet, financing of battery projects has been few and far between. The renewables sector was struck a blow by the imposition of tariffs on imported solar panels, however it looks as if the possible disruption to finance implicit in the new base erosion anti-abuse tax (BEAT) has been avoided. Despite uncertainty in the renewables market, 2017 saw considerable Canadian investment in renewable energy projects in the US.

With the rapid growth of supply from shale gas resources over the past decade, there has been an accompanying fall in US domestic natural gas prices; this has led to rising natural gas exports, both via pipeline to Mexico and to overseas markets via LNG tankers. As a result, many lawyers were involved in midstream transactional mandates, including the financing of LNG terminals. Upstream work was also in plentiful supply with numerous private equity funds investing in assets in shale plays such as the Permian, Eagle Ford and Marcellus, partly as a result of consolidation in relation to distressed assets.

Despite a series of environment-related declarations by the Trump administration, including announcing US withdrawal from the Paris Agreement (PA) and an end to the Clean Power Plan (CPP) rule (which limits coal plant emissions), both the PA and CPP are still in force. Nonetheless, many observers anticipate an increase in deregulation-related court activity in 2018.

Notable legal market news included Latham & Watkins LLP adding five former senior US government officials to its environmental law team in Washington DC, including global vice environment, land and resources department chair Janice Schneider, the former US Senate-confirmed assistant secretary for land and minerals management at the Department of the Interior (DOI); former DOI chief of staff Tommy Beaudreau; Steven Croley, who was US Senate-confirmed general counsel for the Department of Energy; and Joel Beauvais, former deputy assistant administrator for water at the Environmental Protection Agency (EPA). Meanwhile, at Dentons, Nicholas Yost retired from the practice and Peter Gray left for Crowell & Moring LLP.

Elsewhere, Beveridge & Diamond, P.C. opened a Seattle office, hiring David Weber and Loren Dunn from Riddell Williams P.S., where Weber was the environmental practice group chair.

On the health insurance front, the Trump administration’s so far unsuccessful attempts to ‘repeal and replace’ the Affordable Care Act (or ‘Obamacare’) have fueled litigation and established a significant level of uncertainty in the market as insurers are consistently adapting to new proposals and anticipated changes to the healthcare system. The Trump administration has also proposed changes and cuts to the Medicaid system, including the requirement that recipients be working, volunteering or training for a job and changing the way in which Medicaid funds are received. Firms have also seen a substantial increase in False Claims Act (FCA) litigation and behavioral health matters - particularly work surrounding the Mental Health Parity and Addiction Equity Act.

In the context of healthcare service providers, the consolidation trend has persevered, with providers continuing to merge and create alliances both within states and nationally. Prompted by healthcare budget cuts and enhanced by continued low interest rates, the market has also seen increased interest from private equity investors. Fraud and abuse claims and investigations also remain key, with many firms strengthening their FCA offerings, while the transition from volume-based to value-based healthcare continues to impact providers, forcing them to change the way in which they provides their services.

Within the life sciences space, firms have seen an increase in clinical development and funding transactions, particularly with private equity involvement. Firms have also noticed issues regarding increasing costs and pricing in the pharmaceutical sector, as well as continued aggressive regulation in patent matters. While outbound work has also seen some activity, potential tax reforms could introduce an increase in inbound activities in the future.

The insurance market has seen a move towards consolidation, and cross-border M&A deals have dominated many non-contentious practices. There has been uncertainty around inbound investment, with investment from China fading as regulations have tightened, however many law firms also report increasing interest from Japanese investors. The buzz around ‘insurtech’ continued, as insurer clients increasingly advanced their technological capabilities to improve efficiency and keep up with customer demand, and there is speculation that there may be an increase in technology-related acquisitions for insurer clients in the near future.

Coverage litigation arising from the subprime crisis continued to provide contentious work for many firms, and disputes from healthcare liabilities and natural catastrophes continued to be widespread. Firms noted an increase in high-stakes reinsurance disputes, as consolidation in the industry limited interest in small-dollar disputes. Cyber insurance and data breach litigation were increasingly prevalent and are becoming key areas of specialism for many law firms as the threat of cybercrime increases and regulations and policies continue to evolve.

The market for transactional acquisition work continued to remain fairly quiet, with few ‘Big Four’ franchises changing ownership. Nevertheless, the values of those franchises changing hands became increasingly eye catching, with the Houston Rockets sold by Leslie Alexander to Tilman Fertitta for $2.2bn and Joseph Tsai buying a significant interest in the Brooklyn Nets at a locked-in valuation of $2.3bn. Stadium developments and team relocation continued to grab the focus in football, with firms advising franchises and other connected parties on plans such as the development of the Chargers’ and Rams’ new stadium in Inglewood and the Oakland Raiders’ controversial relocation to Las Vegas. Firms were also increasingly involved with ‘eSports’, advising entertainment companies on the formation and launch of eSports leagues and assisting teams with their entry into said leagues and ancillary marketing issues.

The NFL concussion litigation remained a salient issue for contentious sports work. While the NFL’s primary concussion case settled in late 2016, litigation is ongoing with those players who opted out of the settlement agreement and is expected to have a lasting impact on football and other professional and school sports; the NHL is currently defending claims from plaintiffs alleging long-term consequences from head trauma. Meanwhile, on 4 December 2017, the Supreme Court heard arguments in respect to New Jersey’s challenge to the federal law barring gambling in most states, and is expected to rule in early- to mid-2018. It is expected that if the court strikes down the law then gambling on major leagues could become legal within the next decade.

Whereas in the past this guide has deployed overarching transport sections to cover the aviation, rail and road, and shipping industries, those sections have been expanded in 2018 to illustrate the dynamism of the US transport industry. In addition to better reflecting the reality of the country’s transport market, this change allows for in-depth coverage of three general routes through which law firms approach the transport market: through finance and corporate work, through litigation, and through regulatory expertise. Firms specializing in asset-backed finance, leasing and large fleet transactions are ranked in the various transport finance sections according to their respective focus. For aviation finance, clients will see Clifford Chance and Milbank, Tweed, Hadley & McCloy LLP in the table’s top tier, which also recognizes Vedder Price’s well-known asset finance group. In the rail and road finance section, King & Spalding LLP stands out for its prolific equipment finance practice, while Blank Rome LLP, Cozen O'Connor and Jones Walker LLP are among the most active shipping and vessel finance teams.

The transport litigation sections include perhaps the largest variety of work. Here, readers will find firms handling cases ranging from product liability claims to catastrophic air collisions in the aviation industry; nationally significant employment disputes and federal pre-emption suits affecting the automotive and rail industries; and environmental concerns and ship arrests in the maritime sector. The litigation teams at Arnold & Porter, Condon & Forsyth LLP and Jones Day have considerable experience in the aviation industry; Gibson, Dunn & Crutcher LLP and McGuireWoods LLP are go-to firms for rail and road litigation; and clients involved in major shipping disputes will find Blank Rome LLP, Freehill Hogan & Mahar LLP and K&L Gates at the top of the shipping table.

Being an industry that is subject to stringent but often opaque regulatory dictates, the three respective transport regulatory sections aim to identify the standout legal teams that navigate the US regulatory regimes governing the air, land and sea. In terms of regulatory expertise, Cozen O'Connor and Hogan Lovells US LLP are highly regarded in the aviation sector; Gibson, Dunn & Crutcher LLP, Hogan Lovells US LLP and Mayer Brown have especially well-known contentious regulatory practices; and though the legal regulatory space in the shipping industry is varied, Winston & Strawn LLP, Jones Walker LLP and McGuireWoods LLP are among the market’s leading firms.

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