Friday, January 07, 2011
On Judge Thomas Horne
In this article, a local newspaper for Loudoun County declares Circuit Court Judge Thomas Horne its "citizen of the year," and explains why in extensive detail. Among other things, Justice Mims credits Horne as the primary contributor to the bench book for circuit court judges.
Thursday, January 06, 2011
On the NiSource royalty litigation in the W.D. Va.
In the famous Tawney case from Roane County, West Virginia, a group of royalty owners obtained a $405 million jury verdict against a group of natural gas companies on a variety of theories, including that the gas companies deducted more than they should have done from the sales price of the gas in calculating royalties and that the companies wrongfully included the below-market advance sales of gas in calculating royalties. Last year, in Kentucky, there was a class action settlement of claims related to some of the same transactions, in Thacker v. Chesapeake Appalachia.
The advance sales are an interesting story, that I have read a little bit about in the past. They are interesting because of the tie-in with Enron, the poster child for corporate greed. The record of one series of U.S. Senate hearings into the role of financial institutions in the collapse of Enron, which includes some discussion of the Mahonia transactions that also involved NiSource, can be accessed here. In those hearings, Senator Levin explained in his opening remarks:
"We will show how the banks arranged for Enron to carry out these so-called prepays by using offshore shell companies which the banks controlled, like Mahonia and Delta Energy--companies which have no employees, no offices, and operate in secrecy jurisdictions, that make it tough for law enforcement to uncover or understand their relationships to the banks behind them.
The offshore entities were passthroughs, controlled by banks, and helped disguise the loans so that they wouldn't show as debt on Enron's financial statements. Those offshore entities were not the independent entities which they needed to be in order for the promises of future delivery of commodities to them to be legitimate prepays. We will also hear how the banks acted to limit public disclosure of Enron's prepay obligations."
In other words, the claim is that transactions were set up to look like pre-paid sales of natural gas, when in fact they were loans. NiSource was not connected with Enron, but it allegedly engaged in similar transactions as those described by Senator Levin. The alleged effect on the royalty owners is that these prepays mixed in with real sales had the effect of reducing the average price on which the determination of royalties was based.
Claims of a similar nature as in the West Virginia and Kentucky cases have been raised in the case of Healy v. Chesapeake Appalachia, and in this opinion, Magistrate Judge Sargent dealt with the gas companies' motion to dismiss, which raised among other things the issue of the statute of limitations and whether there could be any tort claims for failure to pay accurate royalties. Judge Sargent recommended that the plaintiff's claims can go forward, for the most part.
One of the issues was the statute of limitations. The Defendants argued that notwithstanding the fact that they were obligated to pay royalties in installments, the breach if any occurred years ago and so the plaintiffs' cause of action accrued all at once. We argued a similar limitations issue years ago in United Mine Workers of America 1974 Pension Trust v. Big Star Coal Co., 1998 U.S. Dist. LEXIS 11530 (D.D.C. 1998), with somewhat better success. In that case, we argued that "[e]ven with respect to contracts requiring installment payments, when there is a repudiation or "total breach" of contract, the plaintiffs must bring suit on their whole claim in a single cause of action, and cited this quote from Corbin:
Suppose next that the contract requires performance in instalments or continuously for some period and that there has been such a partial failure of performance as justified immediate action for a partial breach. If this partial breach is accompanied by repudiation of the contractual obligation such repudiation is anticipatory with respect to the performances that are not yet due. In most cases the repudiator is now regarded as having committed a “total” breach, justifying immediate action for the remedies appropriate thereto. In determining the damages recoverable in such an action, it is necessary for the court to look into the future. In spite of the uncertainty involved in this, the trier of fact is permitted to make an estimate to be added to the damages awarded for the actual non-performance that has already occurred. In most cases this remedy is regarded as adequate and the injured party is allowed only one action for his wrong. The non-performance plus the repudiation constitute one and only one cause of action.
4 CORBIN ON CONTRACTS § 954, pp. 831-32.
Probably the most interesting issue in the opinion from the oil and gas lawyer's perspective is whether the plaintiff can bring claims for breach of implied duties. On the one hand, Virginia is not a big implied duty state - the tendency in Virginia law moreso than in more "liberal" jurisdictions is to enforce contracts as written. On the other hand, there is a wide body of case law in the jurisdictions where oil and gas production has been a way of life for over 100 years dealing with the implied duties of gas producers. Judge Sargent concluded: "I hold that Virginia courts would recognize an implied duty on the part of oil and gas lessees to operate diligently and prudently, including a duty to market the gas produced."
Interesting to me is the discussion of offensive collateral estoppel. In the Buchanan County RICO case, Judge Jones was convinced to apply offensive collateral estoppel in favor of the plaintiff and against the defendants on the issues necessarily determined by their criminal convictions. Judge Sargent concluded that the issue of collateral estoppel against the gas companies based on the outcome of the Tawney case would have to be determined at a later stage of the case.
The advance sales are an interesting story, that I have read a little bit about in the past. They are interesting because of the tie-in with Enron, the poster child for corporate greed. The record of one series of U.S. Senate hearings into the role of financial institutions in the collapse of Enron, which includes some discussion of the Mahonia transactions that also involved NiSource, can be accessed here. In those hearings, Senator Levin explained in his opening remarks:
"We will show how the banks arranged for Enron to carry out these so-called prepays by using offshore shell companies which the banks controlled, like Mahonia and Delta Energy--companies which have no employees, no offices, and operate in secrecy jurisdictions, that make it tough for law enforcement to uncover or understand their relationships to the banks behind them.
The offshore entities were passthroughs, controlled by banks, and helped disguise the loans so that they wouldn't show as debt on Enron's financial statements. Those offshore entities were not the independent entities which they needed to be in order for the promises of future delivery of commodities to them to be legitimate prepays. We will also hear how the banks acted to limit public disclosure of Enron's prepay obligations."
In other words, the claim is that transactions were set up to look like pre-paid sales of natural gas, when in fact they were loans. NiSource was not connected with Enron, but it allegedly engaged in similar transactions as those described by Senator Levin. The alleged effect on the royalty owners is that these prepays mixed in with real sales had the effect of reducing the average price on which the determination of royalties was based.
Claims of a similar nature as in the West Virginia and Kentucky cases have been raised in the case of Healy v. Chesapeake Appalachia, and in this opinion, Magistrate Judge Sargent dealt with the gas companies' motion to dismiss, which raised among other things the issue of the statute of limitations and whether there could be any tort claims for failure to pay accurate royalties. Judge Sargent recommended that the plaintiff's claims can go forward, for the most part.
One of the issues was the statute of limitations. The Defendants argued that notwithstanding the fact that they were obligated to pay royalties in installments, the breach if any occurred years ago and so the plaintiffs' cause of action accrued all at once. We argued a similar limitations issue years ago in United Mine Workers of America 1974 Pension Trust v. Big Star Coal Co., 1998 U.S. Dist. LEXIS 11530 (D.D.C. 1998), with somewhat better success. In that case, we argued that "[e]ven with respect to contracts requiring installment payments, when there is a repudiation or "total breach" of contract, the plaintiffs must bring suit on their whole claim in a single cause of action, and cited this quote from Corbin:
Suppose next that the contract requires performance in instalments or continuously for some period and that there has been such a partial failure of performance as justified immediate action for a partial breach. If this partial breach is accompanied by repudiation of the contractual obligation such repudiation is anticipatory with respect to the performances that are not yet due. In most cases the repudiator is now regarded as having committed a “total” breach, justifying immediate action for the remedies appropriate thereto. In determining the damages recoverable in such an action, it is necessary for the court to look into the future. In spite of the uncertainty involved in this, the trier of fact is permitted to make an estimate to be added to the damages awarded for the actual non-performance that has already occurred. In most cases this remedy is regarded as adequate and the injured party is allowed only one action for his wrong. The non-performance plus the repudiation constitute one and only one cause of action.
4 CORBIN ON CONTRACTS § 954, pp. 831-32.
Probably the most interesting issue in the opinion from the oil and gas lawyer's perspective is whether the plaintiff can bring claims for breach of implied duties. On the one hand, Virginia is not a big implied duty state - the tendency in Virginia law moreso than in more "liberal" jurisdictions is to enforce contracts as written. On the other hand, there is a wide body of case law in the jurisdictions where oil and gas production has been a way of life for over 100 years dealing with the implied duties of gas producers. Judge Sargent concluded: "I hold that Virginia courts would recognize an implied duty on the part of oil and gas lessees to operate diligently and prudently, including a duty to market the gas produced."
Interesting to me is the discussion of offensive collateral estoppel. In the Buchanan County RICO case, Judge Jones was convinced to apply offensive collateral estoppel in favor of the plaintiff and against the defendants on the issues necessarily determined by their criminal convictions. Judge Sargent concluded that the issue of collateral estoppel against the gas companies based on the outcome of the Tawney case would have to be determined at a later stage of the case.
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