Energy Litigation

Litigation in the energy industry has increased with the development of structured markets. We represent both buyers and sellers of power in disputes under bilateral purchase agreements, which can involve arbitrations, court proceedings, agency proceedings, or a combination of these.

Litigation of power purchase agreement disputes in today's environment requires assessment of the complex relationships among purchasers, sellers, regional power pools, and transmission providers. With the existing complicated regulatory overlay, it also requires a solid understanding of the mechanics of energy transactions. Purchasers and sellers in today's evolving and increasingly deregulated marketplace will inevitably be called upon to grapple with these complexities.

Our Energy litigators handle a broad range of matters affecting the oil and natural gas industry, including toxic tort and other class action litigation. We also regularly handle:

• Civil and administrative litigation concerning federal preemption of state regulation
• Condemnation/eminent domain
• Long-term natural gas processing contracts
• Long-term natural gas sales contracts
• Natural gas royalties
• Sales of liquefied natural gas
• Utilization of liquefied natural gas terminal facilities, natural gas pricing
• PCB contamination
• Interstate and intrastate pipeline rates and terms and conditions of service
• Access to interstate and intrastate pipeline facilities
• Development, operation and utilization of interstate and intrastate natural gas storage facilities

We also aid clients in agency litigation relating to rates and services of oil and products pipelines under the Interstate Commerce Act. Effective litigation of these matters requires not only knowledge of the structure and operation of the industry, but detailed understanding of the federal and state regulatory policies that shape industry development.

The operation of nuclear facilities frequently leads to litigation between utilities and the government, vendors, other utilities, power purchasers, shareholders, and co-owners. These high-stakes lawsuits require in-depth knowledge of nuclear regulatory issues, technology, and industry practices.

Our team has been involved in either the prosecution or the defense of the most far-reaching nuclear litigation in the United States over the past 30 years. We have also been involved in prudence reviews regarding nuclear power plant construction and operational outages. Aided by the backgrounds of our nuclear regulatory lawyers, our litigators have successfully resolved cases in which nuclear power plant performance or regulatory problems led to lengthy plant shutdowns complicated by NRC oversight.

We represent the majority of the domestic nuclear industry in damage claims against the federal government in matters involving the government's failure to accept spent nuclear fuel for disposal. Our successes in such cases include judgments in excess of one hundred million dollars in contested trials, as well as groundbreaking settlements in which clients have secured hundreds of millions of dollars in compensation.

We have been simultaneously involved in litigation, arbitration, and mediation in connection with the same outage-a tremendous logistical challenge requiring the review and production of millions of pages of documents. We manage this process cost effectively with state-of-the-art technology.

With nationally ranked mass tort litigation and nuclear energy litigation practices, Morgan Lewis is ideally placed to represent companies facing claims of radiation contamination, radiation exposure, personal injury, property damage, or diminution of property values alleged to arise from nuclear power plant operations, nuclear fuel processing plants, uranium production, radium products, atomic weapons testing, and naturally occurring radioactive materials (NORM). High-stakes lawsuits such as these require an in-depth understanding of radioactive materials and the health effects of exposure to radiation, mastery of the tactics used in mass tort litigation and effective defense strategies, and a thorough command of the regulations and applicable standards regarding radiation safety. Our years of experience defending mass tort claims and toxic tort class actions and representing owners and operators of nuclear power plants, including representation in matters related to the alleged release of radioactive materials, as well as other clients that use radioactive materials in their businesses, enable us to effectively defend clients in radiation-related litigation.

Energy industry companies are often targeted for government investigations conducted by federal agencies such as the NRC, Occupational Safety and Health Administration (OSHA), Environmental Protection Agency (EPA), Commodity Futures Trading Commission (CFTC), and Federal Energy Regulatory Commission (FERC), and can also involve federal prosecutors from the Department of Justice (DOJ).

Our Energy litigation team, in conjunction with lawyers from our Corporate Investigations and Criminal Defense Practice, have successfully represented energy companies in regulatory and DOJ investigations, conducted internal investigations, and developed effective corporate compliance programs.

Another component of the Energy Practice is the representation of clients involved in "whistleblower" litigation. In a typical case, an employee of a utility, a pipeline owner, or a contractor claims to have been the subject of retaliation because he or she raised safety concerns. These cases are usually filed at the Department of Labor (DOL) or the Department of Energy (DOE), but also can involve claims filed in state or federal district courts. Although the claims themselves sometimes do not involve significant financial exposure to clients, they have the potential to damage regulatory relationships, which could lead to severe financial and other consequences, including criminal prosecution.

Our Energy litigators have represented a large number of utilities, contractors, and vendors in whistleblower litigation before regulatory agencies and in the courts. Our success in these representations has been due to our sensitivity to striking the appropriate balance between the clients' needs in the litigation and the potential for harm to the regulatory relationship.

Our government contracts litigation experience has allowed us to successfully represent several of our energy clients in contract disputes with the federal government. We have successfully handled disputes involving the purchase and sale of energy services by the federal government. With the advent of competitive energy markets, federal and state governments are again making efforts to procure energy services through competitive bidding.

We have experience in handling both pre- and post-procurement disputes involving government contracts, leveraging our understanding of the energy industry to assist our clients in their objective to sell energy to the government.

Morgan Lewis has handled various disputes regarding renewable and wind energy technology-involving investors, joint venturers, financiers, and manufacturers-in lawsuits and arbitrations in the United States, Canada, and Europe. We advise clients in negotiations relating to development and construction agreements, including engineering, procurement, and construction agreements, engineering services agreements, construction management agreements, equipment purchase agreements, and power purchase agreements and renewable energy credit purchase agreements.

A side effect of the heightened publicity associated with restructuring is the increased incidence of derivative and class action claims against energy companies. Both shareholder and customer class actions are on the rise. Morgan Lewis litigators have experience against the best of the plaintiffs' bar in a variety of industries involving both shareholder and customer claims.

We have also represented corporate directors in derivative suits in a number of industries. One such example involved claims against the members of an electric utility board of directors for breach of duty by failing to prevent a senior officer from allegedly accepting kickbacks from coal suppliers. Morgan Lewis litigators have also represented utilities in administrative proceedings and state and federal court proceedings on transmission siting issues, stranded investment, and federal antitrust claims.