The Hottest Oil & Gas Claims for 2015.001Short-payment of royalties – when do post-production costs cross the line into unreasonableness?

This next-to-last entry in Blawgletter's seven-part series on the hottest oil & gas claims for returns to the theme of royalty owners who receive less than they believe the lease entitles them to. Part 6 addresses what happens when the operator deducts post-production expenses that it paid to its affiliates rather than independent entities. May the royalty owners sue to bar deduction of affiliates' "unreasonable" charges and recover shortages on earlier royalty payments due to those unreasonable charges?

Legal backdrop

Royalty owners often complain when operators agree to compute royalties (per the lease) “at the mouth of the well” but then deduct costs that arise downstream. They may feel even more unhappy if the leases (in which they reserved their royalty interests) provide something like “the royalty shall be free of all costs related to the exploration, production and marketing of oil and gas production from the lease”. 

Under Texas law, even an express bar on post-production costs may have no effect. See Potts v. Chesapeake Expl., L.L.C., 760 F.3d 470 (5th Cir. 2014) (applying Heritage Resources v. NationsBank, 939 S.W.2d 118 (Tex. 1996), to declare no-deduct clause surplusage); Warren v. Chesapeake Expl., L.L.C., 759 F.3d 413 (5th Cir. 2014) (same); but see Chesapeake Expl., L.L.C. v. Hyder, 427 S.W.3d 472, 477 (Tex. App. – San Antonio 2014, pet. granted) (“[W]e interpret the parties’ agreement as the royalty clause excluding all costs and expenses of production and post-production, including post-production costs and expenses incurred between the point of delivery and the point of sale.”)* (emphasis in original). Even in jurisdictions that, like Texas, permit deduction of post-production costs despite clauses that appear to prohibit the practice, might the royalty owners still have a claim for short-payment?

The Fifth Circuit in Warren left open the issue of the impact of sales to affiliates. The panel noted that “the parties have not argued or briefed, and this opinion does not consider, the relationship among affiliated Chesapeake entities or the impact, if any, that relationship might have on matters at issue regarding the payment or calculation of royalties.” Warren, 759 F.3d at 419. The non-decision raises the question of whether a royalty owner mount a claim that the operator, through its affiliates, charged more than a reasonable amount for post-wellhead costs (such as expenses to gather, compress, treat, process, and market oil and gas).

Plaintiff's perspective

The traits that a good royalty-owner claim would have include these: 

  • Large production from the lease area during the (statute of limitations) look-back period;
  • Benchmark comparisons that show substantially lower charges for the post-production services that the operator’s affiliates provide and charge for;
  • Evidence of a large gap between the affiliates’ costs of providing post-production services and the charges to the operator; and
  • High market prices during the look-back period.

Final installment

The series for the 66th Annual Oil & Gas Law Institute comes to an end next week, when we'll address landowners' claims for damage to the surface.

Your comment

The hottest oil & gas claims series reflects industry conditions as of early 2015. Has the passage of three months affected the sorts of claims that industry participants have made? With the price of West Texas Intermediate rising from around $48 per barrel to almost $57, has pressure on contracts eased? What effects have resulted from the ongoing slump in natural gas prices, which have fallen below $2.55 per mmBtu from over $2.80 in January 2015?

Let us hear your thoughts.

_______________

The Supreme Court of Texas granted review in Hyder and heard argument in the case on March 24, 2015. See Chesapeake Exploration L.L.C. v. Hyder, No. 14-0302 (Tex.). You can see video of the argument here.

Exculpatory ClausesBlawgletter's seven-part exposition of the hottest oil and gas claims for 2015 (which we co-wrote for the Institute for Energy Law's 66th Oil & Gas Law Conference in Houston) moves into an area that plaintiffs hate and defendants love — the exculpatory clause. Specifically, the ones that the American Association of Petroleum Landmen put in the AAPL's standard-form joint operating agreements, or JOAs.

Changes in the JOA from the 1977 and 1982 forms to the 1989 version present the question of whether the exculpatory clause excuses breach of contract and, if so, which kinds of breach. We'll address that before turning to what fact patterns make avoiding the preclusive effect of JOA exculpatory clauses more likely.

Legal Backdrop

Since 1977, the dominant model for JOAs has excused the operator from “losses sustained or liabilities incurred” unless they “result from gross negligence or willful misconduct.”1 But what if the operator broke a  promise in the JOA itself? Does the non-operator still have to show gross negligence or willful misconduct to win a claim of breach?

The answer may depend on which version of the model JOA applies. Under the 1989 form, the Supreme Court of Texas held in Reeder v. Wood County Energy, LLC, 395 S.W.3d 789 (Tex. 2012), a party to a JOA does have to prove a higher degree of fault even for a simple contract claim.2 The Court pointed out that 1977 and 1982 models spoke of “operations” by the operator but that the 1989 form dealt, in contrast, with “activities under this agreement”.3 As the Court explained:

Reading the clause as written, we conclude that the model form transformation is significant, as the change in language broadens the clause’s protection of operators. . . . The agreed standard exempts the operator from liability for its activities unless its liability-causing conduct is due to gross negligence or willful misconduct.

Id. at 795. The Court thus held that the clause barred Reeder’s liability for failing (negligently) to repair oil wells. Id. at 797.

The older clauses, on the other hand, do not apply to pure claims for breach of the JOA, the Tenth Circuit has held, contrary to a 1992 ruling by the Fifth Circuit. In 4Shell Rocky Mountain Production, LLC v. Ultra Resources, Inc., 415 F.3d 1158, 1171 (10th Cir. 2005), the court declined to require gross negligence or willful misconduct for a claim that the operator mishandled “administrative and accounting duties”.5 A district court in Houston reached the same conclusion under Texas law, noting that Reeder had the effect of overruling a contrary Fifth Circuit decision. MDU Barnett Ltd. P’ship v. Chesapeake Expl. Ltd. P’ship, No. H-12-2528, 2014 WL 585740, at *1 & *7 (S. D. Tex. Feb. 14, 2014) (holding that 1982 exculpatory clause did not cover claims for breach of JOA and rejecting Stine v. Marathon Oil Co., 976 F.2d 254, 260-61 (5th Cir. 1992), under Reeder).

Plaintiff perspective

In contrast to the other issues this paper addresses, the question of what effect a JOA exculpatory clause may have presents a challenge more for the plaintiff than for the defendant. What factors will aid a plaintiff whose defendant claims a contractual right to exculpation for wrong-doing less culpable than “gross negligence or willful misconduct”?

  • Absence of contractual privity between the plaintiff and defendant under the JOA (e.g., the plaintiff or defendant did not become a party to the JOA and does not qualify as a third-party beneficiary);
  • Applicability of a pre-1989 JOA form – and therefore a narrower exculpatory clause – to some or all of the damage-causing conduct (as a result, for instance, of conduct occurring at a time or place to which an older JOA form applies);
  • For JOAs using the 1989 form, the source of injury to the plaintiff does not involve the operator’s “activities under this Agreement” or concern its role “as Operator”;
  • For JOAs using the 1977 or 1982 form, the harm to the plaintiff does not relate to the operator’s “operations on the Contract Area” or its behavior “as Operator”; and
  • Big damages.

Looking ahead, and back

We have two more topics to cover yet. For those who missed the first four parts, you can check them out here:

1 For a brief history of the Form 610 JOA since its advent in 1956, see “The 1989 JOA: Horizontal Modifications and Other Crucial Updates”, Oil and Gas Law Digest, Sept. 17, 2014 (available as of Jan. 21, 2015 at http://www.oilandgaslawdigest.com/newscaselawupdate/the-1989-joa-horizontal-modifications-and-other-crucial-updates/).

2 The 1989 clause (with our emphasis) speaks of “activities” rather than only “operations”, as follows:

Operator shall conduct its activities under this agreement as a reasonably prudent operator, in a good and workmanlike manner, with due diligence and dispatch, in accordance with good oilfield practice, and in compliance with applicable law and regulation, but in no event shall it have any liability as Operator to the other parties for losses sustained or liabilities incurred except such as may result from gross negligence or willful misconduct.

3 The 1977 and 1982 clause provided as follows (with our emphasis):

[Operator] … shall conduct and direct and have full control of all operations on the Contract Area as permitted and required by, and within the limits of, this agreement. It shall conduct all such operations in a good and workmanlike manner, but it shall have no liability as Operator to the other parties for losses sustained or liabilities incurred, except such as may result from gross negligence or willful misconduct.

4 The Fifth Circuit ruled that the 1977 and 1982 language applied to contract claims in Stine v. Marathon Oil Co., 976 F.2d 254, 260-61 (5th Cir. 1992) (applying Texas law). At least one court has noted the split between the Fifth and Tenth Circuits on the issue. See Forest Oil Corp. v. Union Oil Co. of Am., No. 3:05-cv-0078, 2006 WL 905345, at *3 (D. Alaska Apr. 7, 2006) (adopting Ultra Resources holding and rejecting Stine’s) (applying Alaska law).

5 The court cited its decision in Amoco Rocmount Co. v. Anschutz Corp., 7 F.3d 909, 923 (10th Cir. 1993) (noting that clause may cover “tortious acts related to the performance of the contract” but did not apply to “actions taken deliberately and . . . in breach of the contract involving shifting costs between the contracting” working interest owners) (applying Colorado law).

 

Flaring GasBlawgletter offers the fourth installment in the seven-part series on the Hottest Oil & Gas Claims for 2015. This time, we address whether flaring gas qualifies as "use" on which the operator must pay royalties.

Legal backdrop

Royalty clauses typically require payment of royalty for oil and gas “produced from the Leased Premises and sold or used on or off the Leased Premises”. Chesapeake Expl., L.L.C. v. Hyder, 427 S.W.3d 472, 481 (Tex. App. – San Antonio 2014, pet. granted) (emphasis added).* A compensable “use” includes burning “gas for fuel or other operations”. Id. at 482.

In the Bakken shale area (and other “new” production areas that may lack gathering lines and other infrastructure), “the oil contains significant amounts of natural gas, and because of the geological manner in which the gas is commingled with oil in deposits, operators cannot produce the oil without releasing the gas simultaneously.” Kelly A. Williams and Joshua B. Cannon, Frontier Flaring: Science & Economics, Politics & Regulation – the Future of Flaring, 60 RMMLF-INST 5 at 3-4 (2014).** Does the need to produce gas in order to get oil to the surface make flaring the gas “use” of it for purposes of the royalty clause?

Claim economics

A viable claim for royalties arising from flaring of gas will likely include these traits:

  • Physical necessity of extracting gas to produce oil from the formation;
  • Loss of substantial quantities of gas through flaring;
  • Absence of contractual, regulatory, or statutory language authorizing gas-flaring or restricting remedies; and
  • High wellhead prices during the relevant look-back period (e.g., the length of the statute of limitations) and into the future.

* On January 30, 2015, the Supreme Court of Texas granted review in Hyder and set the appeal for argument on March 24, 2015. See Chesapeake Expl., L.L.C. v. Hyder, No. 14-302 (Tex. Jan. 30, 2015).

** A flaring claim under a standard royalty clause may exist apart from other theories. North Dakota law, for instance, requires a producer that flares gas without an exemption to “pay royalties to royalty owners upon the value of the flared gas”, N.D.C.C. § 38-08-06.4, but the statute grants a right only to pursue relief before the North Dakota Industrial Commission, Hansen v. Hunt Oil Co., No. 1:14-cv-00021 (D.N.D. May 14, 2014), aff’d sub nom. Sorenson v. Burlington Resources Oil & Gas Co., L.P., No. 14-2407 (8th Cir. Aug. 19, 2014).  The Louisiana Department of Natural Resources takes the view that “[r]oyalty must still be paid upon the flared/vented gas even with the  Dept. of Conservation approval for flaring.” Royalty Payments Frequently Asked Questions, La. Dept. of Nat. Resources (available at http://dnr.louisiana.gov/index.cfm?md=pagebuilder&tmp=home&pid=406) (as of Jan. 20, 2015). “Not surprisingly, the states have adopted differing approaches to assessing royalties on flared gas, and state policies fall somewhere on the continuum between charging royalties for all gas flared on state leases (e.g., Texas) and charging no royalties for gas legally flared (e.g., Utah).” Frontier Flaring, 60 RMMLF-INST at 10.

 

FrackingOil and gas and the Empire State

Does a state's years-long ban on the fracking of oil and gas wells extend the "primary" term of a lease until the ban ends, allowing the frackers who couldn't frack more time to come back and frack?

This week, the highest court of an important commercial state that seldom speaks on oil and gas industry matters took up the question. Although in 1882 New York became "the number one oil-producing state in the nation", New York courts have long since ceded authoritativeness in oil and gas matters to "out-of-state 'oil' jurisdictions". Beardslee v. Inflection Energy, LLC, No. 44 (N.Y. Mar. 31, 2015). But the Court of Appeals' thumping answer — in favor of landowners and against what it called "energy companies" — may open cracks in the fracking legal landscape across the U.S.

The leases

The dispute pitted owners of land in upstate New York (Tioga County) against those "energy companies", which had entered into oil and gas leases. Each of the leases contained "an identical term clause, also known as an habendum clause, which establishes the primary and definite period during which the energy companies may exercise the drilling rights granted by the leases." Beardslee, slip op. at 3 (footnote omitted).

The primary term ran out, per the lease language, after "FIVE (5) years from the date hereof". Id. A "secondary term" would kick in if, but only if, "said land is operated by Lessee in the production of oil or gas." Id. (emphasis added).

As the energy companies had drilled no wells on the landowners' property, the leases would have expired at the end of the primary term — unless something somehow extended them.

Here comes the ban

Possible rescue arrived in the guise of the Governor of New York. As alarm about fracking rose, Governor Paterson put a state-wide hold on new permits for the fracking of wells pending a study of environmental and other effects. The lessees responded by sending the landowners notice that "New York's government action constituted a force majeure event under the leases, which purportedly extended the leases' terms." Id. at 5. They cited a clause that stated as follows:

If and when drilling . . . [is] delayed or interrupted . . . as a result of some order, rule, regulation, requisition or necessity of the government, or as the result of any other cause whatsoever beyond the control of the Lessee, the time of such delay or interruption shall not be counted against Lessee, anything in this lease to the contrary notwithstanding.

Id. at 6 (emphasis added).

The landowners sued the lessees in the Northern District of New York. They sought a judgment declaring that the leases "had expired by their own terms" when the primary terms ended with no drilling or production.  The district court granted summary judgment on the ground that the force majeure clause had "no effect on the habendum clause and the lease terms because the energy companies did not have an obligation to drill" during the primary term. Id. at 7. Citing gaps in the spotty fabric of oil and gas law in New York, the Second Circuit certified questions to the Court of Appeals for a definitive ruling. The Court accepted.

The decision

The outcome of the case depended on whether the force majeure clause did, or did not, apply to the "primary term" part of the habendum clause. The Court concluded that it did not, holding both that "the habendum clause is not expressly modified or enlarged by the force majeure clause" and that "the language in the force majeure provision does not supersede all other clauses in the leases, only those with which it is in conflict." Id. at 10 & 11.

The Court went on:

Moreover, the second sentence in the force majeure clause, which deals exclusively with governmental regulations, pertains only to the energy companies' express or implied covenants — the lessee's obligations. As the energy companies made no express or implied covenants applicable to the primary term (other than to pay delay rentals, which are not at issue here), the force majeure clause must relate to only continuous drilling/production operations during the secondary term of the leases . . . . Furthermore, this latter sentence in the force majeure clause expressly indicates that the subject clause deals with lease termination, not lease expiration. The corresponding habendum clause provision is its secondary term, which also addresses the conditions under which the leases would terminate, whereas the primary term deals with lease expiration.

Id. at 11-12 (citation omitted). The force majeure clause, in other words, (a) did not apply to the lessee's obligations during the primary term (mainly to make bonus and rent payments but not to drill) and (b) did apply to the lessee's duties in the secondary term (after the commencement of drilling operations) but did not affect the outcome of the case because the leases never got beyond the primary term.

Upshot

The outcome generally spells bad news for oil and gas companies/lessees and good news for mineral owners/lessors. The former would like to hold onto potentially valuable leases, at little or no cost, until a fracking ban goes away and market prices go back up (having dropped by more than half in the case of oil since mid-2014 and 40 percent in the case of gas). The latter (landowners/lessors) would also prefer that prices rise again, but in the meantime they do not want the deadweight of a lease that produces no income or even any prospect of income while the lessees wait out the moratorium and the recession in market prices.

The tougher question will have to do with the effect of the fracking ban on leases in the secondary term, which does not start until production begins. The Court noted that the force majeure clause does address "the conditions under which the leases would terminate" – the principal one involving failure to produce oil or gas in paying quantities. See "Hottest Oil & Gas Claims, Part 1: Busting Leases"; "Hottest Oil & Gas Claims, Part 2: New Drilling Technology".

Will the moratorium on fracking extend the secondary term of a lease in New York (and elsewhere)? In a time of sub-$50 a barrel of oil and $2.65 an Mcf for gas, is it worth fighting over? Under what circumstances?

What do you think?

Preview-micro 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" — that no longer means a vertical hole in the ground.

Legal backdrop

New techniques for drilling, completion, and conducting other operations have the potential for disrupting oil and gas law. Horizontal drilling offers a case in point.

With conventional (vertical) drilling, “well” more or less refers to the wellhead, the place where the basically up-and-down wellbore connects to the surface. Drilling sideways, by contrast, typically taps into oil and gas deposits at multiple “takepoints” or “drain holes”.  See Springer Ranch, Ltd. v. Jones, 421 S.W.3d 273, 289 (Tex. App. – San Antonio 2013, no pet.) (holding that contract between adjoining landowners required apportionment of royalties according to “the ratio of the productive portions of the SR2 well on [the landowners’] respective properties to the entire length of the well, multiplied by the one-eighth lease royalty”); Browning Oil Co. v. Luecke, 38 S.W.3d 625 (Tex. App. – Austin 2000, pet. denied) (discussing allocation of production for purposes of computing royalty under lease that restricted pooling).

The definition of “well” may thus blur. What consequences follow?

Plaintiff's perspective 

A claim over what constitutes a “well” will likely (if not necessarily) involve a contractual relationship, as in the Springer Ranch case, between the plaintiff and the defendant. But that may not present much of a barrier; relationships like that abound in the oil and gas industry.

The standard-form joint operating agreement, for instance, uses “well” dozens of times but does not define it. Oil and gas leases also speak of “wells” but seldom give the word a specific meaning. Landowners or lessees whose tracts adjoin may also work out supplemental lease terms that allow pooling or enter into “production sharing agreements” that provide for horizontal wells crossing two or more tracts. See Clifton A. Squibb, The Age of Allocation: The End of Pooling as We Know It?, 45 Tex. Tech. L. Rev. 929, 940-41 (2013).

What would a good claim over what constitutes a well look like? The factual setting may include these features:

  • Large production from and reserves in actual or potential communication with the horizontal wellbore (enhancing the value of any "well" that lies along the wellbore);
  • Absence of contractual language defining “well” (making its meaning debatable);
  • Contractual language that bars or limits pooling, entitles the mineral owner to royalties or other payments with respect to production from any “well”, or otherwise bases payments on the existence or number of "wells"; and
  • High wellhead prices during the relevant look-back period (e.g., the length of the statute of limitations) and into the future.

Enough value?

Recall that the basic economics of pursuing claims (whether in a lawsuit, arbitration, or otherwise) will make some claims more viable than others. In general, the same traits that render a claim attractive to a contingent-fee lawyer will determine whether the potential gain supports risking your own resources (e.g., hourly fees plus expenses) in the endeavor — a good liability case, provable damages, and a wrong-doer that can afford to pay.

The series

You can see the first two posts at Hottest Oil & Gas Claims, Part 1: Busting Leases and Hottest Oil & Gas Claims, Part 2: New Drilling Technology.

Next time, we'll look at whether flaring gas qualifies as "use" for purposes of computing royalties.

Top 10 Blog Posts

Breach of covenant to administer lease — must the operator use the latest drilling and completion technology?

Fracs

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 for using high-cost drilling and completion techniques more plausible. Those claims may remain economic for look-back periods in spite of the recent drop in prices, but those who have them ought to act promptly to avoid statute of limitations concerns. 

Legal backdrop.

The lessee under an oil and gas lease has a duty “to manage and administer the lease”, and within that broad charge arises an obligation to “use successful modern methods of production and development.” Amoco Prod. Co. v. Alexander, 622 S.W.2d 563, 567 & n.1 (1981) (quoting R. Hemingway, The Law of Oil & Gas § 8.1 (1971)). These days, “successful modern methods of production and development” plainly include unconventional techniques like horizontal drilling and hydraulic fracturing.

Indeed, a half-century ago, the Oklahoma Supreme Court held that an operator’s failure to use “sandfracing” on wells in part of a 90-acre tract supported cancellation of the lease as to that acreage. Crocker v. Humble Oil & Refining Co., 419 P.2d 265, 274 (Okla. 1965) (“The defendant cannot offer any reasonable excuse in its failure to utilize the sandfracing process for further development of the cancelled portion of the lease.”).* And “the tight, homogeneous nature of shale rock makes development somewhat like a mining operation” that involves far less geological risk than in other kinds of formations. David E. Pierce, Implied Covenant Law and Horizontal Development 7-14 (Nov. 9, 2012). An operator who fails to employ these and other potentially gainful methods may thus face a claim for breach of the implied covenant. But how far does the duty go?

Plaintiff perspective.

Because all implied lease covenants stem from a single duty of the lessee to act in good faith as a reasonable and prudent operator, Krug v. Helmerich & Payne, Inc., 320 P.3d 1012, 1022 (Okla. 2012) (quoting Owen L. Anderson, Oil and Gas Law and Taxation 402 (4th ed. 2004)), the reasonably prudent operator test will determine whether or not a lessee’s failure to use unconventional methods complied with its duty to administer the lease.

A strong claim for failure to use the latest drilling technology would include some or all of these circumstances:

  • Large reserves, preferably the proved and producing kind, within the lease area;
  • Successful use of production-maximizing techniques in the relevant formation on or near the acreage;
  • Pipeline access from the tract to points of sale; and
  • High wellhead prices during the relevant look-back period (e.g., the length of the statute of limitations) and into the future.
*   *   *   *
Next time we'll deal with whether each drain hole or takepoint in a horizontal well counts as a well and the consequences of a yes answer.

* The Supreme Court of Texas held in Coastal Oil & Gas Corp. v. Garza Energy Trust, 268 S.W.3d 1, 14 (2008), that a landowner cannot sue another landowner “for oil and gas drained by hydraulic fracturing that extends beyond lease lines” into the first landowner’s property. The ruling lowered the risks of, and therefore had the effect of encouraging, aggressive horizontal drilling campaigns.

Yes-No Signs

False opinions

Giving a knowingly false opinion about a public company can expose the company and its insiders to liability for securities fraud under federal law.

But what about an opinion that they truly believe but for which they have a flimsy basis?

The Supreme Court held today that the lack of rigor may indeed support a claim under the Securities Act of 1933, 15 U.S.C. 77k(a), in spite of the opinion-giver's earnestness.

Omnicare's belief

The case arose from a public stock offering by Omnicare, Inc., a company that provided pharmacy services for people who reside in nursing homes. Omnicare said in the registration statement that it "believe[d]" it complied with relevant law. The belief proved untrue; Omnicare's rebates to pharmacies did violate federal law against paying kickbacks.

Pension funds that bought Omnicare stock in the initial public offering sued under section 11 of the Securities Act after lawsuits by the federal government undercut Omnicare's claim of legal compliance. The district court dismissed the case, but the Sixth Circuit reversed, holding "that a statement of opinion that is ultimately found incorrect — even if believed at the time made — may count as count as an 'untrue statement of material fact.'" Omnicare, Inc. v. Laborers Dist. Council Constr. Industry Pension Fund, No. 14-435, slip op. at 6 (U.S. Mar. 24, 2015) (quoting 15 U.S.C. 77k(a)).

Facts and opinions

The Court ruled 9-0 that the court of appeals erred in concluding that Omnicare had made an "untrue statement of material fact". While "a statement of fact ('the coffee is hot') expresses certainty about a thing," "a statement of opinion ('I think the coffee is hot') does not." Id. Because Ominicare said only that it "believe[d]" its rebates didn't violate anti-kickback law and the pension funds "do not contest that Omincare's opinion was honestly held", the statement — of a false but sincere view — did not run afoul of the Securities Act, all nine justices agreed. Id. at 9. "[A] sincere statement of pure opinion is not an 'untrue statement of material fact,' regardless whether an investor can ultimately prove the belief wrong." Id.

That left the question of whether the funds had alleged a viable claim that "Omnicare 'omitted to state facts necessary' to make its opinion on legal compliance 'not misleading.'" Id. at 10 (quoting 15 U.S.C. 77k(a)). Seven of the justices concluded that the funds deserved a chance to persuade the courts below that they had stated an adequate omission claim.

The majority pointed out that "a reasonable investor may, depending on the circumstances, understand an opinion statement to convey facts about how the speaker has formed the opinion—or, otherwise put, about the speaker’s basis for holding that view." Id. at 11. Justice Kagan explained:

Section 11’s omissions clause, as applied to statements of both opinion and fact, necessarily brings the reasonable person into the analysis, and asks what she would naturally understand a statement to convey beyond its literal meaning. And for expressions of opinion, that means considering the foundation she would expect an issuer to have before making the statement. 

Id. at 17. The Court sent the case back to the Sixth Circuit for analysis of whether the pension funds' complaint adequately stated an omissions claim.

Concurrences

Justices Antonin Scalia and Clarence Thomas concurred in separate opinions. Justice Scalia wrote that section 11 does not apply to omissions about the basis for opinions unless the opiner "intend[ed] to deceive" by failing to disclose the flimsiness of the basis. Id. at 6 (Scalia, J., concurring). Justice Thomas felt that the question of liability for an omission "is not properly before us" since the courts below had not passed on it. Id.  at 1 (Thomas, J., concurring).

Upshot

Omnicare offers more to plaintiffs than to defendants, for two main reasons. First, the mere fact that a public disclosure expresses or relates to an opinion will not preclude liability. Section 11 covers not only lying about an opinion — saying you believe something when you don't — but also falsely implying that an opinion rests on a reasonably rigorous basis — suggesting that adequate expertise and a sufficient investigation support it.

Second, the Court's ruling saves Securities Act claims from the challenges of pleading a claim under the onerous standards of the Private Securities Litigation Reform Act of 1995. Justice Scalia would have imported scienter into the section 11 analysis despite its absence as an element under the Securities Act, but the majority rejected that approach. Id. at 15 n.11 (stating that "we think Justice Scalia's reliance on the common law’s requirement of an intent to deceive is inconsistent with §11’s standard of liability").

The Court's decision will give new life to securities cases that target false statements about legal and other opinions. Plaintiffs may want to rejoice.

In Blawgletter's opinion.

Note: Our series on the hottest oil and gas claims will resume tomorrow.

Preview-microThe 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 forgive.

In light of the strains within the oil and gas industry, what sorts of claims can you expect to see in 2015? In this series — which originated as a paper for the 66th Annual Oil & Gas Law Conference in Houston — Blawgletter will offer the top seven answers.

We start with Busting leases – when does failing to produce in paying quantities entitle the lessor to kick the lessee out?

Why bust a lease

Let's start with the why — what could prompt a party to a lease to want to bring it to an end. The answer generally has to do with the terms of the lease or with the parties' course of performance under it. The minerals owner — the lessor — will prefer a higher royalty rate (25 percent, say) over a lower one (12.5 percent, for instance) because the higher percentage means more money to her. The lessee, on the other hand, will want to pay as a smaller percentage. And all kinds of difficulties and breaches may make either party unhappy with the contractual relationship and therefore anxious to end it.

Legal backdrop 

The ability of a well to produce oil or gas “in paying quantities” generally will extend the lease until the quantities will no longer pay a profit, even a “small” one. Clifton v. Koontz, 160 Tex. 82, 325 S.W.2d 684, 690-91 (1959). “Whether there is a reasonable basis for the expectation of profitable returns from the well is the test.” Id. at 691; see, e.g., T.W. Phillips Gas & Oil Co. v. Jedlicka, 615 Pa. 199, 42 A.3d 261, 276 (2012) (applying Cliftonstandard). Several factors may enter into the analysis, including what constitutes “a reasonable period of time under the circumstances” for turning a profit. Clifton, 325 S.W.2d at 691.

The capacity to produce at a profit holds the lease whether or not profitable production in fact occurs, but the well must flow without additional equipment or repair. See, e.g., Anadarko Petroleum Corp. v. Thompson, 94 S.W.3d 550, 557-58 (Tex. 2002); Pack v. Santa Fe Minerals, 869 P.2d 323, 326-27 (Okla. 1994) (stating that “the lease in the case at bar cannot terminate under the terms of the habendum clause because the parties stipulated that the subject wells were at all times capable of producing in paying quantities”). Even if a well no longer pays but still produces some oil or gas, a second prong of the test may save the lease anyway. In that situation, the party seeking to end a lease must show also that a reasonably prudent operator would not have continued operations for the purpose of profit rather than mere speculation. EnerQuest Oil & Gas, LLC v. Plains Expl. & Prod. Co., 981 F. Supp. 2d 575, 597 (W.D. Tex. 2013) (citingCannon v. Sun-Key Oil Co., Inc., 117 S.W.3d 416, 421 (Tex. App. – Eastland 2003, pet. denied)). A total cessation of production may also permit termination of a lease. Cannon, 117 S.W.3d at 421-22.

Changes in market prices of course affect whether or not a well can produce in paying quantities. A large price rise may make low-producing wells capable of paying, while a plunge in price may turn profitable wells into losers. In the pricing climate of early 2015 – when crude oil prices in the U.S. had fallen from more than $100 per barrel (in June 2014) to less than $45 and gas had gone from over $4 per MMBtu (with a $6 spike in February 2014) to below $3 – some lessors and lessees who want to break leases may have a chance.

Claim economics

The basic economics of pursuing claims (whether in a lawsuit, arbitration, or otherwise) will make some claims more viable than others. In general, the same traits that render a claim attractive to a contingent-fee lawyer will determine whether the potential gain supports risking your own resources (e.g., hourly fees plus expenses) in the endeavor. On a lease-busting claim by a lessee for failure to produce in paying quantities, favorable characteristics will include these:

  • Large non-producing reserves within the lease area (making the future bright for whoever controls the minerals);
  • Successful use of production-maximizing techniques in the relevant formation on or near the acreage (tending to enhance the revenue stream);
  • Demand for but failure of the operator to employ the successful techniques or perform repairs, including as a result of financial distress (putting the equities on the lessor's side);
  • Unfavorable lease terms from the lessor’s perspective (e.g., below-market royalty rate);
  • Pipeline access from the tract to points of sale (improving the ability to obtain market prices); and
  • Low wellhead prices due to temporary oversupply (possibly implying a speculative motive on the part of the operator for holding the lease).

These features suggest a situation in which an operator may have sacrificed the lessee’s interest in maximizing current production (and therefore royalties) at the altar of saving money during an industry downturn. They also indicate a potentially large upside for the mineral owner, who without the existing lease could enter into a more favorable one or develop the minerals herself.

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Next in the series — the obligation of operators to use the latest technology for drilling and completing wells.

State action?

White TeethThe U.S. Supreme Court ruled today that a North Carolina board's ban on cheap teeth-whitening by non-dentists may expose the board's members to a federal antitrust claim despite the board's status as a creature of the state. N. Carolina State Board of Dental Examiners v. FTC, No. 13-534 (U.S. Feb. 25, 2015).

The 6-3 Court stressed that the "state-action" defense to Sherman Act claims may not apply "when the State seeks to delegate its regulatory power to active market participants". Id. at 8.

The decision invites extra scrutiny — a drilling down if you like — on actions by politically unaccountable entities that use the power of the state to brush away competition.

Making teeth whiter

The case that the Court bit into started when dentists in the Tar Heel State complained about non-dentists who sold teeth-whitening services. The North Carolina State Board of Dental Examiners diagnosed the upstarts as a competitive threat and reacted by sending "cease and desist" letters to dozens of the chopper-glossers. "These actions had the intended result. Nondentists ceased offering whitening services in North Carolina." Id. at 3.

That provoked a snarl at the Federal Trade Commission. The FTC extracted an order from an administrative judge against the Board under section 5 of the Federal Trade Commission Act, 15 U.S.C. 45, which declares unfair methods of competition "unlawful". The Board's toothless defense lost all the way to the Fourth Circuit, which upheld the FTC's order prohibiting further efforts to suppress the provision of dazzling smiles by persons who don't have a dental license.

The Board's appeal to the Supreme Court

The case as it landed in the Supreme Court raised the question of whether the Board could invoke "the doctrine of state-action antitrust immunity as defined and applied in this Court's decisions beginning with Parker v. Brown, 317 U.S. 341 (1943)." Id. at 1. The core of the doctrine, the Court noted, allows states to "impose restrictions on occupations, confer exclusive or shared rights to dominate a market, or otherwise limit competition to achieve public objectives." Id. at 5. Thus, "the Court in Parker v. Brown interpreted the antitrust laws to confer immunity on anticompetitive conduct by the States when acting in their sovereign capacity." Id.

But what if a state smiles on a "nonsovereign actor controlled by market participants" by allowing it to wield the state's sovereign power? In that situation, the Court pointed out, the actor "enjoys Parker immunity only if it satisfies two requirements: 'first that "the challenged restraint . . . be one clearly articulated and affirmatively expressed as state policy," and second that "the policy . . . be actively supervised by the State."'" Id. at 6 (quoting FTC v. Phoebe Putney Health Sys., Inc., 133 S. Ct. 1003, 1010 (2013)).

No active supervision

The case turned on the "actively supervised by the State" prong of the Parker test. The majority — per Justice Anthony Kennedy — had little trouble concluding that North Carolina did not engage in active supervision of the cease-and-desist letter campaign. "[T]he Board relied upon cease-and-desist letters threatening criminal liability, rather than any of the powers at its disposal that would invoke oversight by a politically accountable official." Id. at 17. The Board's method thus eschewed a decision by a "politically accountable" person in state government on whether or not to allow the Board's treatment of teeth-whitening by non-dentists as the illegal practice of dentistry.

Dissent

The three most conservative justices dissented. Justice Sam Alito led the frowners, contending that the majority had taken "the unprecedented step of holding that Parker does not apply to the North Carolina Board because the Board is not structured in a way that merits a good-government seal of approval". Id. at 1 (dissent). The fact that the Board "is made up of practicing dentists who have a financial incentive to use the licensing laws to further the financial interests of the State's dentists" did not matter, in Justice Alito's view. Id. So long as the state clothed the Board with the power to do what it did, Parker braced its actions with antitrust immunity, regardless of the anticompetitive motives or effects.

Impact

The decision in North Carolina Board picks on regulatory entities that "market participants" control. That class bridges a range of quasi-governmental units, including bar associations, medical boards, and hospital authorities. These regulators typically oversee specific trades and professions, and their actions can make the difference between crowning success and economic decay. Their actions — particularly enforcement actions that "politically accountable" persons in government do not participate in or approve — will now come under closer probing.

Applebee'sIn Roach v. T.L. Cannon Corp., No. 13-3070-cv (2d Cir. Feb. 10, 2015), the Second Circuit gave a narrow reading of the Supreme Court's ruling on class certification in Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013).*

The outcome does not surprise Blawgletter, who had the honor of arguing Comcast Corp. v. Behrend on behalf of class plaintiffs. In view of Comcast's provenance, it should not surprise anyone else either.

After losing in the courts below, Comcast sought review on the question of whether the Third Circuit and the district court erred by failing to grapple with the "merits", but the Court granted cert. on another issue, one that it had expressly reserved the year before (2011) in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011) — whether class plaintiffs must meet the Daubert test if they rely on expert proof to establish damages.

But the Court seems not to have realized that Comcast hadn't raised the Daubert issue in the district court or the court of appeals, that Comcast had as a result "forfeited" any objection to admissibility of our damages expert's opinions, and that the case therefore "would give lower courts scant guidance . . . in the great majority of cases" involving class certification. Respondents' Br. at 19.

The mismatch between the case that the Court thought it had and the one that it actually faced became more salient during oral argument. That apparently led to an impromptu post-argument meeting of the justices and a rewrite of the Question Presented; the revision in turn prompted a dual dissent, which Justices Ginsburg and Breyer delivered on the morning of the first arguments in the Obamacare cases.

At the Court, the history of the Comcast case had the effect of barring a reversal unless the Court could conclude that the class expert's testimony in no way tended to show damages, class-wide or otherwise. The majority did reach that conclusion, but it had to determine (in our view, contrary to the district court's findings and the evidence) that the damages expert tried to link damages to specific anti-competitive conduct but failed. (The liability expert did make the causal connection, but because of how the Court had re-framed the Question Presented, the briefing and argument did not explore the sufficiency of that important part of the record, which in any event did not support the Court's reading of the evidence.)

Almost all of the courts interpreting Comcast have correctly appreciated the narrowness of the Court's holding. While Blawgletter respectfully disagrees with the majority's conclusion that class plaintiffs did not present evidence linking anti-competitive conduct with class-wide damages, the case stands for that conclusion and nothing more.

We therefore think that the Second Circuit certainly reached the right conclusion yesterday when it held just that in Roach v. T.L. Cannon Corp.

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* For an overview of the Second Circuit case, which involved wage and hour claims by Applebee's employees, see Alison Frankel, The Supreme Court's class action underachiever", Feb. 11, 2015, Reuters.