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In Mays v. Chevron Pipe Line Co., 2020 WL 4432025, a three-judge panel of the United States Fifth Circuit Court of Appeal held on August 3, 2020, that the Longshore Harbor Workers’ Compensation Act may apply to an injury in state territorial waters if there is a substantial nexus between an employee’s injury and his employer’s, both direct and statutory, extractive operations on the Outer Continental Shelf.
Continue Reading U.S. Fifth Circuit Clarifies “Substantial Nexus” Test for LHWCA

One of the major outcomes of the 2020 Louisiana Legislative session was the passage of tort reform legislation that supporters argue will lower insurance rates and change the state’s notoriously litigious environment. The Civil Justice Reform Act of 2020, House Bill 57 (“HB57”) introduces a number of key changes:

  • Allows jury trials if damages sought exceed $10,000 (the prior rule required $50,000 in damages);
  • Revised the controversial “collateral source rule”;
  • Repealed the limitation on presenting evidence of a plaintiff’s failure to wear a seat belt in a car accident; and
  • Limits the discussion of a party’s insurance coverage before a jury except (with limited exceptions).

Continue Reading Louisiana Governor Signs 2020 Tort Reform Legislation

With the prevalence of cases involving royalty disputes in Texas, the state’s Supreme Court has never hesitated to address these issues.  But the Court’s sporadic holdings regarding royalty clauses, each so specific to the particular language of the lease, have left lessees on unsteady footing.  BlueStone primes the Court to resolve a Texas appellate court split regarding whether a lease provision requiring royalties to be paid based on “gross” profits or value received from the sale of oil and gas production nullifies an “at the well” valuation point elsewhere in a lease.
Continue Reading Trudging the Rocky Landscape of Royalty Dispute Litigation with the Texas Supreme Court Yet Again in BlueStone

Amidst historically low oil prices and economic shutdowns, fossil fuel companies continue to defend against lawsuits brought by state and local governments claiming climate-change related damages.  In two companion cases, a panel of the United States Court of Appeals for the Ninth Circuit decided whether a federal district court could properly exercise jurisdiction over climate change suits brought against energy companies by cities and counties in California.  In County of San Mateo et al. v. Chevron Corporation et al., Docket No. 18-15499, the Ninth Circuit held that 28 U.S.C. § 1447(d) limited appellate review of an order to remand to the extent the order addressed whether removal was proper under the federal officer removal statute, 28 U.S.C. § 1442(a)(1).  The Ninth Circuit further held that the district court did not err in finding that it lacked subject matter jurisdiction under the federal-officer removal statute.  In City of Oakland et al. v. BP PLC et al., Docket No. 18-16663, the Ninth Circuit vacated the district court’s order denying remand and sent the case back to the federal district court with instructions to consider whether alternative grounds for subject-matter jurisdiction exist.
Continue Reading Climate Change Jurisdiction: U.S. Court of Appeals for the Ninth Circuit Kicks Climate Change Case Back to State Court

On May 19, 2020, the Occupational Safety and Health Administration (“OSHA”) issued two noteworthy enforcement memos. The first memo announced the reversal of OSHA’s April 10, 2020 policy that limited the requirement to track on-the-job cases of COVID-19 to health-care facilities, emergency response providers, and corrections facilities. The new policy, which goes into effect on May 26, 2020, mandates that all employers who are required to maintain OSHA injury and illness logs determine whether employees’ cases of the COVID-19 virus are “work-related” and record those that meet certain requirements. Specifically, employers subject to OSHA’s recordkeeping requirements must record a case of COVID-19 as job-related if (1) it is a confirmed case of the virus as defined by the CDC, (2) it is “work-related” in that an event or exposure in the work environment either contributed to or caused an employee to contract the virus, and (3) it results in death, days away from work, restricted work or transfer, medical treatment beyond first aid, or loss of consciousness or involves a significant diagnosed injury or illness. Employers who have no recordkeeping obligations need only report work-related COVID-19 illnesses resulting in an employee’s death or in-patient hospitalization, amputation, or loss of an eye.
Continue Reading OSHA Addresses Reporting COVID-19 Cases as Job-Related and In-Person Workplace Inspections

The Louisiana Third Circuit Court of Appeal recently issued an opinion involving issues of prescription and breach of contract claims in the context of Act 312 and “legacy lawsuits” that oil and gas companies must remain cognizant of going forward. In State of Louisiana, et al. v. Louisiana Land & Exploration Co., et al., the Third Circuit affirmed the Vermilion Parish School Board’s authority to sue on behalf of the state, rejected a prescription defense on the basis of prescription immunity under the Louisiana Constitution, and concluded that a finding of “environmental damage” as defined under Act 312 is sufficient to trigger a breach of contract claim.
Continue Reading Third Circuit Issues New Act 312 Decision Involving Prescription and Breach of Contract

This week, in a split 7-2 opinion authored by Chief Justice Roberts, the Supreme Court held that Montana state law claims brought by private landowners against Atlantic Richfield Company (“ARCO”) for alleged impacts from the Anaconda Smelter Superfund site are not preempted by CERCLA and are not precluded by ARCO’s settlement of EPA’s CERCLA claims; however, any restoration damages awarded to the landowners must be spent on actual restoration of the property, as required by Montana state law, and restoration must be conducted in a manner either approved by the EPA or consistent with the EPA’s already-approved remedial action plan.Continue Reading ARCO v. Christian: Supreme Court Allows State Law Claims for Restoration Damages in Excess of EPA Superfund Cleanup, but EPA Must Approve Any Additional Remedial Action

This article was updated on April 14, 2020.

Day-to-day life has been dramatically impacted by the coronavirus disease 2019 (COVID-19), and many courts in Louisiana and Texas have been forced to close or limit operations in conjunction with stay-at-home orders.  A brief discussion of how COVID-19 has affected Louisiana and Texas courts is discussed here.Continue Reading Louisiana and Texas COVID-19 Stay-at-Home Orders and Effects on State Courts

Today, countries worldwide are responding to a pandemic of respiratory disease spreading from person-to-person caused by a novel coronavirus.  The disease has been named “coronavirus disease 2019” (abbreviated “COVID-19”).  The pandemic poses a serious public health risk, and government response has included closure of schools and businesses, declarations of emergency, and issuance of a variety of “stay home” orders—typically instructing all but “essential personnel” to remain in their residences other than to gather necessaries.  These events have dramatically impacted the world economy, and wreaked havoc on the day-to-day functions of individuals and businesses in the United States and elsewhere.  Does this pandemic and resultant disruption constitute a force majeure event under Louisiana and Texas law?Continue Reading COVID-19 as a Force Majeure? The Texas and Louisiana Perspectives

Last year, in another dispute over who should bear the cost of decommissioning offshore facilities, the Southern District of Texas held that a former sub-assignee of offshore operating rights was entitled to equitable subrogation from the record title owner and initial assignor.  Sojitz Energy Venture, Inc. v. Union Oil Co. of California, 394 F. Supp. 3d 687 (S.D. Tex. 2019).Continue Reading Fifth Circuit to Hold Oral Argument in Sojitz v. UNOCAL in April 2020