Archives: Litigation

Subscribe to Litigation RSS Feed

The Fifth Circuit’s Decision in In Re: DePuy Orthopaedics, Inc., et al, Illustrates the Possibility that Even When You Lose a Writ of Mandamus, You May Still Win

Faced with the prospect of having to defend another costly test-case trial in a multidistrict litigation proceeding involving over 9,000 plaintiffs, the defendants (petitioners before the Court of Appeals) filed a writ of mandamus challenging the district court’s decision that they waived their jurisdictional and venue objections (known as a Lexecon waiver).  Had the Court … Continue Reading

Dusky Gopher Frog’s Louisiana Critical Habitat Spawns U.S. Supreme Court Writ

A group of Louisiana landowners, Weyerhaeuser Company, and the Pacific Legal Foundation filed Petitions for Writs of Certiorari this month asking the U.S. Supreme Court to overturn the U.S. Fish and Wildlife Service’s (USFWS) decision to designate 1,544 acres of private land in St. Tammany Parish, Louisiana as critical habitat for the endangered dusky gopher … Continue Reading

United States Fifth Circuit Confirms Remedies Available to Subrogated Insurer

On July 7, 2017, the United States Fifth Circuit Court of Appeal, in Associated International Insurance Company v. Scottsdale Insurance Company, held that, under Texas law, the subrogation clause of an insurance agreement allowed a subrogated insurer to seek reformation of a contract between its insured and a third party.  In that appeal, the defendant’s … Continue Reading

Plaquemines Parish Amends Petition for Damages In Coastal Zone Management Act Litigation

The Parish of Plaquemines amended its petitions in two of the Coastal Zone Management Act (“CZMA”) cases on June 19, 2017.  Prior to the amendment of the petitions, Judge Clement sustained Defendants’ Exceptions of Vagueness in the two cases, namely: The Parish of Plaquemines v. Rozel Operating Co., et al. and The Parish of Plaquemines … Continue Reading

U.S. Fifth Circuit Greenlights Contribution Action for Purely Economic Damages Under Oil Pollution Act (OPA)

In Settoon Towing, L.L.C. v. Marquette Transportation Company, L.L.C., No. 16-30459 (5th Cir. Jun. 9, 2017), the United States Fifth Circuit Court of Appeals held for the first time that a Responsible Party under the Oil Pollution Act of 1990 (“OPA”) has a statutory claim for contribution to recover purely economic damages from a partially … Continue Reading

U.S. Fifth Circuit Adopts Broad Definition of “Good Faith” for Louisiana Environmental Whistleblower Claims

On June 1, 2017, the United States Fifth Circuit Court of Appeals in Borcik v. Crosby Tugs, L.L.C. applied a broad definition of the intent required of a plaintiff under the Louisiana Environmental Whistleblower Act.  In doing so, both the Fifth Circuit and the Louisiana Supreme Court apply a more plaintiff friendly standard to claims … Continue Reading

United States Supreme Court Limits Forums Available to Railroad Workers

The United States Supreme Court, in BNSF Railway Co. v. Tyrrell (May 30, 2017), declined to allow a personal injury plaintiff to sue a railroad company in a state in which the railroad does business but is not incorporated or headquartered.  In BNSF Railway Co., two plaintiffs brought suit for injuries in Montana “although the … Continue Reading

U.S. Fifth Circuit Affirms Application of the Subsequent Purchaser Doctrine in Oilfield Contamination Case, Recognizes “Clear Consensus” Among Louisiana Appellate Courts, and Declines Certification to the Louisiana Supreme Court

In Guilbeau v. Hess Corporation, the United States Fifth Circuit Court of Appeals unanimously affirmed the application of Louisiana’s subsequent purchaser doctrine to bar a plaintiff’s claims for property damage resulting from alleged oilfield contamination that occurred prior to his purchase of the property.  The court specifically rejected the plaintiff’s attempt to characterize the multitude … Continue Reading

Fifth Circuit Holds that Unpatented Products Can Be Given Patent-Like Protection by Contract

In a breach of contract case involving the overlay of intellectual property and contract law, Luv n’ care, Ltd, a global leader in the design and sale of baby products, filed suit against its former distributor, Groupo Rimar, a.k.a. Suavinex, S.A. (“Suavinex”), for breach of Suavinex’s contractual obligation not to copy any of Luv n’ … Continue Reading

Leave It to the States: Oklahoma Federal Court Dismisses Fracking Suit In Favor Of Administrative Regulation

On April 4, 2017, a federal district court dismissed a citizen-enforcement action under the Resource Conservation and Recovery Act that could have profound impact on fracking suits against the oil and gas industry. In Sierra Club v. Chesapeke Operating, LLC, the Sierra Club alleged that the deep injection of liquid waste from oil and gas … Continue Reading

Louisiana Second Circuit Addresses: (1) Creation of Mineral Servitudes Via Notarial Acts of Correction; (2) Obstacles Suspending the Prescription of Nonuse from Running Against Mineral Servitudes; and (3) Payment of Court Costs in Concursus Actions

In Petro-Chem Operating Co., Inc. v. Flat River Farms, L.L.C., the Louisiana Second Circuit addressed issues affecting the creation and preservation of mineral servitudes and payment of court costs in a concursus action.[1] In the case, an operator initiated a concursus action seeking to resolve ownership interest in minerals underlying property on which it was … Continue Reading

Louisiana Supreme Court Denies Writ Application in XXI Oil & Gas v. Hilcorp

On March 24, 2017, the Louisiana Supreme Court declined to consider the Louisiana Third Circuit Court of Appeal’s decision in XXI Oil & Gas v. Hilcorp.[1] The Third Circuit’s decision involved the interpretation of Louisiana’s well cost reporting regime under La. R.S. 30:103.1-103.2 (collectively referred to herein as “the Statutes”) with respect to: (1) the … Continue Reading

Fifth Circuit Dismisses False Claims Act Suit Alleging Violation Of Offshore Regulations

In Abbott v. BP, the plaintiffs alleged that BP had falsely certified to compliance with regulatory requirements pertaining to the engineering of the Atlantis Platform, a semi-submersible floating production facility capable of producing more than 100,000 barrels/day.  Based on these allegations, Plaintiff Kenneth Abbott filed a qui tam suit under the False Claims Act (FCA), … Continue Reading

Oregon Federal Court Issues Remarkable Decision Finding Constitutional Right to Stable Climate

Photo of a blue sky with white, fluffy cloudsOn November 10, 2016, Judge Ann Aiken, a federal district judge in Oregon, issued a remarkable environmental law decision in which she found that a climate system “capable of sustaining human life” is a fundamental constitutional right.[1] Juliana v. United States challenges the constitutionality of the United States’ decades-long policy on climate change.[2] The plaintiffs, … Continue Reading

Fifth Circuit Limits Effect of Collateral Source Rule Under General Maritime Law

In DePerrodil v. Bozovic Marine, Inc., No. 16-30009, 2016 WL 6810728, at *1 (5th Cir. Nov. 17, 2016), a panel of the United States Court of Appeals for the Fifth Circuit recently limited the effect of the collateral source rule in a maritime employee’s personal injury action against a non-employer.  DePerrodil held that the collateral … Continue Reading

Expropriated Servitudes: They Aren’t Going Away Anytime Soon

The Third Circuit recently released an unpublished opinion making clear that when a pipeline company expropriates a servitude, the servitude is “perpetual,” and a Court cannot impose a term on that servitude.  The Third Circuit also held that a landowner must prove any damages over and above the fair market value of the property, and … Continue Reading

THE DISPUTE BETWEEN GOVERNOR JOHN BEL EDWARDS AND ATTORNEY GENERAL JEFF LANDRY OVER THE APPOINTMENT OF PRIVATE LEGAL COUNSEL CONTINUES…

On September 30, 2016, Governor John Bel Edwards sued Attorney General Jeff Landry to compel him to approve several contracts between the Governor’s office and private legal counsel. In his Petition, the Governor alleged that the Attorney General’s role in approving the Governor’s contracts with private legal counsel is a ministerial duty that the Attorney General … Continue Reading

New Government Contractor “Blacklisting” Reporting Requirements Put on Hold

Hours before a controversial set of new reporting requirements for government contractors was set to take effect, a federal court in Texas enjoined implementation of the requirements across the country.… Continue Reading

Contra Non Not Applicable: Louisiana Appellate Court Refuses to Find Exception to Running of Prescription

Sophisticated plaintiffs beware.  In Bayou Fleet, Inc. v. Bollinger Shipyards, Inc., et al., the Louisiana Fourth Circuit Court of Appeal concluded that contra non valentem, a judicially created exception to prescription, did not apply to prevent the running of prescription on a claim for wrongful conversion when the plaintiff company, the owner of a destroyed … Continue Reading

Texas Supreme Court Agrees to Review Three Oil and Gas Cases in 2016

On September 2, 2016, the Texas Supreme Court agreed to review three oil and gas cases involving issues pertinent to the industry and land and mineral owners. BP America Production Company v. Red Deer Resources, LLC In BP America Production Company v. Red Deer Resources, LLC, the lessee of a top lease, Red Deer, sued … Continue Reading

Attorney General Finds Governor’s Contract for Legal Services Not Approvable, Unacceptable, Illegal, and Unconstitutional

The dispute between Governor John Bel Edwards and Attorney General Jeff Landry over the retention of several private attorneys to represent the State of Louisiana, through the Department of Natural Resources (“LDNR”) in coastal loss litigation has taken a new twist.  These lawsuits were filed by several parish governments alleging dozens of oil and gas … Continue Reading

Louisiana Flooding – Legal Update

The Liskow & Lewis family stands by our friends and neighbors throughout the unprecedented flooding in our community. As we begin the long process of recovery, here is a brief legal update on the response of various courts and state agencies: State courts: Governor John Bel Edwards has issued an executive order which purports to suspend … Continue Reading

The Dusky Gopher Frog Causes Big Problems for Industrial and Commercial Development in Parts of St. Tammany Parish

In 2010, under the Endangered Species Act (“ESA”), the United States Fish and Wildlife Service (“the FWS”) designated 6,477 acres in Mississippi and Louisiana as “critical habitat” for the Rana sevosa or the dusky gopher frog.  This frog has historically lived in nine counties or parishes across Louisiana, Mississippi, and Alabama.  Since its 2001 designation … Continue Reading

Louisiana Department of Revenue Targets Energy Companies in Rash of Oil Severance Tax Audits

The oil and gas industry has a significant and far reaching economic impact in Louisiana. According to one 2014 study, the total direct and indirect impact on the state is approximately $73.8 billion.[1] Taxes make up a large part of the industry’s direct economic impact in Louisiana: In 2013, the industry paid nearly $1.5 billion in … Continue Reading
LexBlog