Federal Court Finds A Continuing Duty Under Louisiana Law To Prevent The Erosion of Pipeline Canals

A recent decision from the Eastern District of Louisiana provides a mixed bag for pipeline companies or others whose operations involve canals.  Significantly, the decision from Judge Milazzo holds that during the existence of a right-of-way/servitude, Louisiana servitude law imposes a continuing duty to prevent canals from expanding and widening over time, unless unambiguous contractual language allows otherwise. Continue Reading

DOL May Delay Implementation of Fiduciary Rule

The Department of Labor in a brief filed in a Minnesota lawsuit on August 9, 2017 revealed that DOL had submitted to the Office of Management and Budget a proposal to delay the implementation of remaining parts of the DOL fiduciary rule from Jan. 1, 2018, until July 1, 2019.  This would delay the implementation of the BICE and BICE Lite procedures that will cause serious adjustments to most advisers’ business model and procedures.  The postponement of the effective date is not official yet, as it has to be approved by the Office of Management and Budget —a process that can take as long as 90 days. Continue Reading

Fifth Circuit Addresses A Complicated Cargo Dispute, Resulting In A Victory For Vessel-Operating Common Carriers

In GIC Services, L.L.C. v. Freightplus USA, Inc., No. 15-3097 (5th Cir. Aug. 8, 2017), the United States Fifth Circuit Court of Appeals held that an ocean carrier stiffed by an intermediary in a freight transaction may recover unpaid freight from the original NVOCC who arranged the cargo transportation unless the evidence clearly shows the carrier intended to release that party from liability.  The court further held that the carrier may protect its interest in unpaid freight against the cargo in rem, and weighed in on several other issues pertinent to the maritime field.  The key points of the lengthy opinion are highlighted below. Continue Reading

SEC Cybersecurity Alert

The SEC published a National Exam Program Risk Alert describing the results of cybersecurity exams of 75 broker-dealers and investment advisors on August 7, 2017. “National Exam Program Risk Alert, Observations from Cybersecurity Examinations,” (SEC August 7, 2017)

This report is useful in evaluating your investment advisory firm’s cybersecurity policies.  Two issues received particular attention from the SEC in the report:  (1) the need to make sure that security patches and upgrades are timely installed on all firm computer systems, and (2) the need for firms to tailor policies and procedures to actual practices (or vice versa). Continue Reading

Five Lessons Learned from Executing Shale Drilling Transactions

Shale drilling transactions typically involve (1) a party who holds oil and gas leases with underlying shale formations but who may not have the risk capital or expertise to explore such formations (the “Lease Party”) and (2) a party who has the risk capital and the expertise to drill and complete successful horizontal wells in shale formations using hydraulic fracturing techniques (the “Drilling Party”).

In these transactions, the Drilling Party pays for or “carries” all or a substantial portion of the Lease Party’s share of the costs of drilling and completing one or more wells on the leases (“Earning Wells”).  If an Earning Well is completed as a well capable of producing hydrocarbons, the Lease Party will assign a portion of its working interest in the lease or spacing unit to the Drilling Party. Continue Reading

U.S. Supreme Court’s Decision Not to Take Certiorari in United States v. DeCoster is a Reminder to the Food and Drug Industries to be Mindful of the Park Doctrine

Earlier this year there was hope in the food and drug industries that the Supreme Court would revisit and possibly revise the Responsible Corporate Officer Doctrine, also known as the Park Doctrine, by granting certiorari to the Eighth Circuit’s decision in United States v. DeCoster.  That hope was dashed in May when the Supreme Court declined, which left the Park Doctrine – with all of its ominous peril – the law of the land. Continue Reading

Strong Dissent Warns of “Devastating Economic Repercussions” of Second Circuit’s Decision in Oil & Gas Case

In Gloria’s Ranch, L.L.C. v. Tauren Exploration, Inc., the Louisiana Second Circuit upheld a trial court’s ruling that Wells Fargo, a mortgage lender with a security interest in a mineral lease, was solidarily liable with its borrowers (the mineral lessees) for a breach of the mineral lessees’ contractual and statutory obligations to produce in paying quantities, pay royalties, and respond to the mineral lessor’s demands regarding those obligations.  A detailed summary of that decision is available here. Continue Reading

The End of LIBOR: What’s Next for Lenders and Borrowers?

According to Britain’s Financial Conduct Authority, the London Interbank Offered Rate, or LIBOR, will be phased out and abandoned by the end of 2021.  This phase out will put lenders and borrowers in a tricky situation as LIBOR is the most commonly used interest rate index and is estimated to be tied to over $350 trillion of financial products globally, including commercial mortgages, corporate loans and swap transactions.  LIBOR is calculated daily and aims to provide the average interest rate at which the 10 to 20 contributing banks may obtain loans from each other.  Over the past ten years, LIBOR has been highly susceptible to rigging scandals and market manipulation since the calculation is often not underpinned by actual market transactions, leading to its eventual abandonment. 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 frog.

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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 primary and excess insurer settled a lawsuit.  The excess insurer, Associated International Insurance Co., then sought reimbursement from Scottsdale, an insurer that had also issued a commercial umbrella policy to the insured defendant.  Scottsdale argued Associated could not seek reimbursement because the property that had been at issue in the underlying suit was not listed on Scottsdale’s schedule of covered properties. Continue Reading

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