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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 of relevant Louisiana appellate court rulings as a “mishmash of appellate jurisprudence,” noting instead that “a clear consensus has emerged among all Louisiana appellate courts that have considered the issue.”
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 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’ care’s product designs.
Continue Reading Fifth Circuit Holds that Unpatented Products Can Be Given Patent-Like Protection by Contract

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 activities has caused an increase in the number and severity of earthquakes in Oklahoma.  To address this alleged harm, the Sierra Club sought several forms of injunctive relief, including reduction of waste disposal activities, reinforcement of structures vulnerable to earthquakes, and the establishment of an independent earthquake monitoring center.

Defendants Chesapeake Operating, LLC, Devon Energy Production Co., LP, and New Dominion, LLC moved to dismiss the case on several grounds.  The court granted the motions on two of these grounds, finding that the issues raised by Sierra Club are best addressed at the state administrative level.
Continue Reading Leave It to the States: Oklahoma Federal Court Dismisses Fracking Suit In Favor Of Administrative Regulation

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 operating. The dispute as to ownership arose because of questions as to: (1) whether or not a notarial act of correction could be used to perfect a mineral reservation in agreements that did not initially include language effecting such a reservation[2] and (2) whether or not inclement weather or the failure to timely obtain a permit could serve as obstacles sufficient to suspend the prescription of nonuse from running against a mineral servitude under Louisiana Mineral Code article 59.[3]
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

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 parties entitled to receive reporting under La. R.S. 30:103.1 and (2) the scope of penalties under La. R.S. 30:103.2 that may be imposed against a unit operator, who fails to provide sufficient well cost reports.[2] For now at least, the Court’s decision to deny writs in XXI Oil & Gas effectively leaves unit operators subject to increased reporting obligations under La. R.S. 30:103.1 and more expansive penalties under La. R.S. 30:103.2 in situations where they fail to provide adequate reporting.[3]
Continue Reading Louisiana Supreme Court Denies Writ Application in XXI Oil & Gas v. Hilcorp

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), asserting that BP had obtained approval to produce oil from the Department of the Interior by falsely certifying to compliance with regulatory engineering standards.  Abbott’s FCA damages claim exceeded $70 billion (reduced from an original claim of $266 billion).  In the same lawsuit and based on the same allegations of regulatory noncompliance, Abbott and plaintiff Food & Water Watch, Inc. filed a citizen suit under the Outer Continental Shelf Lands Act (OCSLA), seeking an injunction of production from the Atlantis platform.  In 2014, the district court granted summary judgment in favor of BP on all claims, finding no material fact in dispute about BP’s regulatory compliance.  On March 14, 2017, the Fifth Circuit affirmed the district court’s ruling.
Continue Reading Fifth Circuit Dismisses False Claims Act Suit Alleging Violation Of Offshore Regulations

On 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, a group of 21 children and young adults, sued the United States and various government officials[3] alleging that they have known for more than five decades “that the carbon dioxide produced by burning fossil fuels was destabilizing the climate system in a way that would ‘significantly endanger plaintiffs, with the damage persisting for millennia.’”[4] According to the plaintiffs, the defendants have failed to take necessary action to curtail fossil fuel emissions, and the government and its agencies “have taken action or failed to take action that has resulted in increased carbon pollution through fossil fuel extraction, production, consumption, transportation, and exportation.”[5]

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

In Gladney v. Anglo-Dutch Energy, L.L.C., the Third Circuit addressed the question of whether or not a mineral lessee must pay its lessor full lease-basis royalties for production undertaken during the effective period of a conditional allowable but prior to the effective date of a unit order.[1] In the case, the Plaintiffs granted a mineral lease to the Defendant-Lessee that provided for a 1/5 royalty in 2009.
Continue Reading Louisiana Third Circuit Addresses Payment of Royalties in Situations Involving Production Under a Mineral Lease Pursuant to a Conditional Allowable Prior to Unitization

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 source rule allows a plaintiff, in a maritime personal injury action against a third party, to recover only the amount of medical expenses paid by the plaintiff’s employer’s Longshore and Harbor Workers’ Compensation Act (“LHWCA”) insurer. 
Continue Reading Fifth Circuit Limits Effect of Collateral Source Rule Under General Maritime Law

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 cannot award an additional amount simply because the landowner is upset that the property is being expropriated.
Continue Reading Expropriated Servitudes: They Aren’t Going Away Anytime Soon