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In recent years, there has been an increase in the number of denials of applications to decommission offshore pipelines in place in a departure from the Bureau of Safety and Environmental Enforcement’s (“BSEE”) longstanding practices.  The denials are accompanied by an order from BSEE to decommission the pipelines by removal, with reference to Notice to Lessees (“NTL”) 2009-G04 and/or “significant sediment resource areas” (“SSRA”) in the vicinity of the pipeline.  BSEE is also issuing orders to companies to remove pipelines located in SSRAs that were previously decommissioned in place.

Continue Reading Federal Offshore Pipeline Decommissioning in BOEM Significant Sediment Resource Areas

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

The Fifth Circuit recently issued an en banc opinion in Latiolais v. Huntington Ingalls, Inc.,[1] a case previously featured on the Blog, overruling “extraordinarily confused” precedent and establishing a new removal test under the Federal Officer Removal Statute, 28 U.S.C. § 1442(a)(1).  This new test is likely to have significant impact on future removals to federal court.Continue Reading En Banc Fifth Circuit Issues Long-Awaited Ruling on Federal Officer Removal

The Texas Supreme Court issued an opinion today in Energy Transfer Partners, L.P v. Enterprise Products Partners, L.P., a case previously featured on the Blog.  This case began in 2011 when ETP and Enterprise explored the possibility of partnering to modify and extend, or construct anew, a pipeline to transport oil southbound from Cushing, Oklahoma.

Continue Reading Texas Supreme Court Decides Energy Transfer Partners v. Enterprise Products

Can targeted advertising establish general jurisdiction over a foreign corporation?  The Fifth Circuit had not addressed this issue until Frank v. P N K (Lake Charles) L.L.C., No. 18-31060, 2020 WL 288213 (5th Cir. Jan. 21, 2020).  But in so doing, the court may have announced a new jurisdictional test with significant ramifications for future cases.

Frank was a wrongful-death lawsuit filed in Texas state court against L’Auberge Hotel & Casino and its marketing division, PNK.  Following removal to federal court, the district court granted PNK’s motion to transfer, finding PNK was not subject to general jurisdiction in Texas.  The plaintiffs appealed.[1]

Continue Reading Fifth Circuit Rules “Approximate Physical Presence” is Required for General Personal Jurisdiction

Since the initiation of climate change litigation several years ago, various state governments and interest groups have filed lawsuits against fossil fuel companies and governing authorities.  The current landscape consists of (1) two lawsuits brought by state governments against an oil and gas company alleging investor fraud; (2) numerous cities, counties, and other local governments seeking compensation from fossil fuel companies for climate change related damages; and (3) nine lawsuits brought by a non-profit law firm, through children, against governments for failing to protect them from fossil fuel emissions.  Below we take a closer look at each category of lawsuits and provide an update on where they stand today.

Continue Reading U.S. Climate Change Litigation: 2020 Update

In May 2018, oil and gas industry defendants removed a docket of 42 cases alleging violations of Louisiana’s coastal zone management laws to federal court in the Eastern and Western Districts of Louisiana (“CZM cases”).  One year later, the Eastern District granted motions to remand filed by Plaquemines Parish and the State of Louisiana in Parish of Plaquemines v. Riverwood Production Company, et al. (“Riverwood”), No. 18-5217, 2019 WL 2271118 (E.D. La. May 28, 2019).  The Western District recently joined the Eastern District and granted similar remand motions filed by Cameron Parish and the State of Louisiana in Parish of Cameron, et al. v. Auster Oil & Gas Incorporated, et al. (“Auster”), No. 18-677, 2019 WL 4734394 (W.D. La. Sept. 26, 2019), —F. Supp. 3d—.  Although there are procedural differences between Riverwood and Auster, both district courts found no federal officer or federal question jurisdiction over the CZM cases.  The Fifth Circuit is poised to resolve these jurisdictional issues in the upcoming year. 
Continue Reading Second Remand Order in Coastal Zone Management Cases Pending Before Fifth Circuit

Through the Tax Cuts and Jobs Act (“TCJA”), in 2017 Congress enacted Code Sections 1400Z-1 and 1400Z-2 of the Internal Revenue Code (the “Code”). These Code Sections were designed to encourage investment and economic growth in certain-low income communities by creating a procedure for identifying Qualified Opportunity Zones (“QOZs”) and offering certain federal income tax incentives to taxpayers who invest in businesses located in them.  Code Section 1400Z-1 provides the procedure for designating QOZs and Section 1400Z-2 outlines the tax benefits associated with investments into these zones.Continue Reading Opportunity Zones: Where Are We Now?

The 2019 Private Target Mergers & Acquisitions Deal Points Study was recently released by the Business Law Section of the American Bar Association.  Copies of the study are available to ABA members on the ABA website, click here.

The study is the diligent work of the Market Trends Subcommittee of the Mergers and Acquisitions Committee and is published on a bi-annual basis.  Attorneys, investment bankers and other advisors routinely refer to the study for trends in key legal issues that are prevalent in negotiated acquisitions of privately held companies in the United States.   The 2019 version of the study analyzes a greater number of transactions at 151 M&A deals that were executed or closed during calendar year 2018 and the first quarter of 2019 with transaction values ranging from $17 million to $500 million.  It also contains new data point references on matters such as the inclusion of #metoo, cybersecurity and data privacy representations and the impact of representations and warranties insurance on indemnification provisions.  These new data points are flagged for the reader.Continue Reading 2019 ABA Private Target Mergers & Acquisitions Deal Points Study

Previous regulations on hardship distributions from 401(k) and 403(b) plans generally provided that a participant could receive an in-service distribution prior to reaching age 59½ if the participant had an immediate and heavy financial need.  The determination of whether a participant had an immediate and heavy financial need was determined based on all relevant facts and circumstances.  However, to simplify administration, the regulations provided for safe-harbor hardship withdrawals that were deemed to be an immediate and heavy financial need.

Late last month, the IRS published final regulations that significantly relaxed some of the requirements under the  safe-harbor provisions.  Some of the changes are mandatory and some are permissive.  The changes are discussed in detail below.Continue Reading New Final Regulations on Hardship Distributions from 401(k) and 403(b) Plans