United States > Industry focus > Overview
The northeastern power markets have been in a state of crisis over the last year attempting to ensure grid reliability and avoid rolling blackouts. Federal Energy Regulatory Commission (FERC) investigations are becoming more frequent amid ever-increasing concerns over grid reliability and, meanwhile, litigation continues from the California blackout of a decade ago. In response to some of the concerns in and around this, New Jersey has implemented a law to incentivize project financing in New Jersey and the in-state construction of natural gas fired combined-cycle power generators. The law is expected to have a profound effect on the PJM interconnection capacity markets relating to buy-side pricing and the law is being challenged under the Federal Power Act before the FERC. In addition, with the Dodd-Frank Act coming into force this year, compliance and reporting issues are expected to seriously affect power-side players, especially those in energy trading.
Recent improvements in technology have opened up more oil and gas exploitation opportunities in the domestic market, for example with shale plays exploitable through hydraulic fracturing technology and other unconventional resources plays becoming plausible. This glut of available natural gas and oil has led to new shale and unconventional resources projects, as well as related acquisitions and divestitures. It has been mooted that some joint ventures are beginning to run their course and that the market is being driven more by M&A at a corporate level, particularly those relating to acreage and technology acquisitions. This argument is most applicable to the Eagle Ford Shale, which even though it is the most active shale play, is reaching full investment level in both acreage and infrastructure.
In renewables, there is uncertainty over the future direction of the solar energy market because certain government incentives and tariffs expired at the end of December 2011 and the remainder will expire at the end of 2012. Offshore wind farms, however, constitute a burgeoning project area with the emblematic Atlantic Wind and Alta Wind projects already underway. Interestingly, there is an increasing level of activity in renewables in areas such as Puerto Rico and Latin America, particularly Brazil and Argentina, and investment from Hong Kong and China, with the latter having a particular interest in carbon sequestration.
Over the last year, McDermott Will & Emery LLP lost numerous members of its energy team to various firms with the majority going to Cadwalader, Wickersham & Taft LLP, including former practice head Paul Pantano. In addition, Hogan Lovells US LLP lost some key players from its team to DLA Piper LLP, including Lee Alexander, Stefan Krantz, John Lilyestrom and Christopher Schindler.
Currently these rankings cover the oil and gas and electricity sectors together, and the rankings are weighted to recognize firms with comprehensive strength across all areas but also recognize high-quality practices that focus on one field or another. The litigation section covers state and federal court litigation, whereas firms with eminent practices in administrative proceedings (including disputes before regulatory bodies) are ranked in the regulatory table; firms with strong practices in both spheres may be ranked in both tables.
2011 saw an increase in environmental work surrounding the use of hydraulic fracturing by natural gas companies in parts of the US. The technique uses highly pressurized fluids to access shale gas deposits contained in rock fractures below the ground, and has attracted significant publicity regarding its environmental impact and health and safety concerns; a greater amount of related litigation and regulation is expected over the coming year. In addition to this, the Environmental Protection Agency (EPA) has continued to pursue its attempts to curb greenhouse gas emissions under existing regulations, such as the Clean Air Act (CAA), and new rulemaking, such as its Mandatory Reporting of Greenhouse Gases Rule and Best Available Control Technology (BACT) guidance for greenhouse gases emitted at bio-energy facilities. This has led to challenges by affected companies and contests over the EPA’s mandate to create them.
The environment ranking covers Clean Air Act, cleantech, climate change, groundwater, Superfund, radioactivity, public nuisance and endangered species matters. Firms recommended for litigation have the capability to operate at a high level in courtroom litigation and arbitration across the sector, or are outstanding in one or several areas. Firms in the transactional and regulatory rankings are noted for their depth and experience in areas such as M&A, capital markets, licenses and royalties, compliance and regulatory.
The healthcare ranking has this year been split between service providers, insurers and life sciences. A firm’s inclusion in any one category means it is either well known for its representation of clients in the area, or has handled a substantial flow of work in the area in the past year. Service providers include hospitals, hospital systems, academic medical institutions and medical centers, while the insurers category includes firms which have a substantial client base on the major insurer/health plan side and the payor side of managed care. The life sciences section covers work for medical device, pharma, biotech and R&D companies.
The work covered spans everything from M&A to regulatory to white-collar defense. As last year, sizeable IP and/or patent litigation practices are mentioned, particularly in relation to life sciences, as well as receiving detailed coverage in the sections dedicated to those areas.
Reform under the Patient Protection and Affordable Care Act (PPACA) has been by far the dominant issue facing service providers and insurers. The move to incentivize integration led to a large amount of work for providers seeking to gain a lead, and drive down future cost, on Accountable Care Organization pilot programs. Spiralling healthcare costs also saw an unprecedented amount of M&A, with health systems and hospitals seeking to economize through consolidation with medical centers and other providers. A government pushback on fraud and abuse meant a glut of work for regulatory and litigation lawyers in enforcement defense: a trend that looks set to continue in the coming years.
Litigation was certainly the prevailing concern of insurers, in the form of high-level actions against Medicare/Medicaid reimbursement rates, recoupment actions against providers, and defense of member actions alleging fraudulent rescission of policies.
Current work on health information technology is likely to be an indicator of future trends, with state-wide electronic health information and insurance exchanges being another major mandate under the PPACA.
An increase in litigation and consolidation, both driven by higher prices and reform, also appears to be the current and future story for the life sciences market. An aggressive Food and Drug Administration has been actively targeting alleged billing fraud, while litigation between companies has been as prevalent as ever. Large-cap pharmaceutical companies looked for new challenges in an economic and regulatory climate ever more hostile to turning profit; this has meant an increase in M&A and licensing/development collaborations, with the trend continuing not just with other pharmas but potentially also with providers and insurers, blurring the lines as to what may in future constitute a life sciences company.
Activity in emerging markets was another feature of 2011/12, as pharmaceutical companies sought to diversify their operations in new territories. China was unsurprisingly the major target for all the top-tier firms active in Asia and Europe, and for many firms below.
The insurance industry has seen a number of changes of late, including legislative reforms under the Patient Protection and Affordable Care Act (PPACA) and the Dodd-Frank Wall Street Reform and Consumer Protection Act. The healthcare reforms have led a number of participants in the health insurance sector to restructure and employ new models in order to comply with PPACA provisions. Although many insurance companies continue to seek advice on the Dodd-Frank Act, its overall impact has been less significant than many industry insiders had anticipated.
In terms of business trends, market consolidation continued in 2011 and this was reflected in Berkshire Hathaway’s move to buy a number of run-off books from other insurance companies. The most significant movement within the legal market came in with a 12-lawyer departure from Dewey & LeBoeuf LLP’s non-contentious insurance practice, including recognised names Donald Henderson, Alexander Dye, John Schwolsky and Michael Groll, who all joined Willkie Farr & Gallagher LLP.