How will lower federal courts react to the loss of a 5-4 pro-business majority on the U.S. Supreme Court?
Oil and Gas + Fractions Equal a Mess
Using a fraction of a fraction instead of a percentage can cost an oil and gas fortune.
The lesson came in Hyshaw v. Dawkins, No. 14-0984 (Tex. Jan. 29, 2016), a fight over a 69 year-old will. It shows what a mess can result from the fondness of oil and gas people for a particular kind of fraction — the sort with an eight in the denominator.
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Why Some Deals Result in Disputes
Last Thursday, the Association for Corporate Growth hosted a talk in Dallas about deals that result in a lawsuit or arbitration. Several dozen deal-makers, mergers and acquisitions lawyers, and consultants attended. The Honorable Jeff Kaplan of JAMS, Elizabeth Brandon of Vinson & Elkins, and I gave the talk. Ladd Hirsch of Diamond McCarthy organized and moderated the event. In a little over an hour, we discussed the characteristics that commonly occur in transactions that produce formal claims, offered suggestions on how deal-makers can manage the risk of earl disputes, and answered several thoughtful questions from the audience. I enjoyed the session immensely. Please see my review of the lively discussion below.
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The Cost of Funding Litigation Expenses
Big dollars in business cases
Expenses in big-dollar lawsuits can run into the millions of dollars. An antitrust class action that I’ve handled since 2003, for instance, cost more than $8 million. The law firms representing the class fronted all that money, with no assurance we would ever get any of it back. Why would any sane person do such a thing?
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The Cost of Third-Party Litigation Funding
Sizable expenses
A big commercial case can cost millions in expenses — by which I mean out-of-pocket costs that the plaintiff or its counsel must pay net of attorneys’ fees. A portfolio of cases — for infringement of a patent or family of patents, say — can run many millions more. Who will bear that burden? And what will it cost?
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Fifth Circuit Misapplies Comcast, Affirms Class Anyway
Modest decision
In Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013), a 5-4 majority — over an extraordinary joint dissent by Justices Ginsburg and Breyer — had to work hard to make a modest ruling. The Court held that plaintiffs seeking class treatment under Rule 23(b)(3) sometimes may have to plausibly link their theory of liability (the misconduct that caused damages) to the theory of class-wide damages (the estimate of the damages flowing from the misconduct) in order to obtain class certification.
I say emphatically that the Court did not hold that any plaintiff class seeking certification under Rule 23(b)(3) must prove damages on a class-wide basis. It said only that if a class cannot obtain class certification without establishing class-wide damages, then by golly it must show that it can establish class-wide damages.
I should know; I briefed and argued the case for the plaintiff class.
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Annals of Oil & Gas: Along Comes a Hyder
A tough record for royalty owners
The highest civil court in the Lone Star State has tended over the years to issue rulings that have made Big Oil even bigger and richer — often at the expense of the Texans who owned the oil and gas deposits in the
Hottest Oil & Gas Claims, Part 3: What Counts as a Well?
Short-payment of royalties
Today we come to number three in Blawgletter's seven-part series on The Hottest Oil & Gas Claims for 2015, a paper that we presented at the 66th Annual Oil & Gas Conference in Houston. The third topic describes an area of legal uncertainty around a common oil and gas term — "well"
Hottest Oil & Gas Claims, Part 2: New Drilling Technology
Breach of covenant to administer lease — must the operator use the latest drilling and completion technology?
Today Blawgletter continues our seven-part series from the 66th Annual Oil & Gas Law Conference in Houston with part 2. We turn now to an issue that had more resonance when high prices dominated and made a call
Hottest Oil & Gas Claims, Part 1: Busting Leases
The collapse in oil prices since June 2014, and the significant drop in those for natural gas, have put tremendous pressures on relationships in the industry. The stresses — between operators and non-operators, lessees and royalty owners, principals and contractors, investors and investees, among others — make legal disputes both more likely and harder to