In this period of profound change for the energy industry, conflicts and litigation among increasingly diverse parties are inevitable. With one of the largest and most diverse energy practices in the world, Morgan Lewis is uniquely positioned to assist our energy clients when such issues arise. Morgan Lewis’ energy litigators understand the changing energy business and can develop strategies that are consistent with each client’s litigation, regulatory, and business goals.
Morgan Lewis’ energy litigators regularly represent our clients on a wide range of energy-related litigation matters in state and federal courts, in arbitration and mediation proceedings, and before federal and state administrative agencies. The Energy Litigation Practice also has extensive experience in multiple forms of alternative dispute resolution, including negotiation, mediation, and arbitration. In addition, we provide litigation avoidance and counseling services designed to develop strategies for our clients to reduce the prospect of litigation.
Shareholder Derivative Suits and Class Action Litigation
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 extensive experience against the best of the plaintiffs’ bar in a variety of industries involving both shareholder and customer claims. Similarly, we have 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.
Power Purchase Agreement Litigation
Instances of litigation in the energy industry have increased with the development of unregulated markets. For example, we represent several independent power producers and power marketers in litigation related to power purchase agreements signed with the State of California and western public utilities during the 2000-2001 energy crises. Litigation of such cases requires assessment of complex interrelationships of purchasers, sellers, regional power pools, and transmission providers, and with the existing complicated regulatory overlay, 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 such varied circumstances.
Litigation Affecting the Oil and Natural Gas Industry
Our energy litigators have extensive experience in a broad range of litigation affecting the oil and natural gas industry. Relevant examples include 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; and the development, operation and utilization of interstate and intrastate natural gas storage facilities. In addition, our energy litigators have extensive experience 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 oil and natural gas industry, but also a detailed and deep understanding of the federal and state regulatory policies that shape the development of that industry.
Nuclear Generating Plant Litigation
The operation of nuclear facilities frequently leads to litigation between utilities and vendors, utilities and power purchasers, and shareholders and utilities, and among co-owners of nuclear facilities. These high-stakes lawsuits are driven by and require an in-depth knowledge of nuclear regulatory issues, technology, and industry practices. We have been involved in either the prosecution or the defense of the most far-reaching nuclear litigation in the United States. Aided by the experience of our nuclear regulatory lawyers, our litigators have established a successful track record in resolving cases in which nuclear power plant performance or regulatory problems have led to lengthy plant shutdowns that were complicated or extended by NRC regulatory oversight. At times, we have been simultaneously involved in litigation, arbitration, and mediation in connection with the same outage. These disputes often present a tremendous logistical challenge, typically requiring the review and production of millions of pages of documents. We manage this process cost effectively with state-of-the-art technology.
Corporate Investigations
Energy industry companies are often targeted for government investigations. These investigations, involving allegations of wrongdoing, are conducted by the investigative arms of federal agencies such as the NRC, Occupational Safety and Health Administration (OSHA), Environmental Protection Agency (EPA), and Federal Energy Regulatory Commission (FERC), and can also involve federal prosecutors from the Department of Justice (DOJ). Our energy litigators, in conjunction with lawyers from our Corporate Investigations and Criminal Defense Practice Group (composed of former prosecutors and criminal defense attorneys), have successfully represented energy companies in regulatory and DOJ investigations, conducted internal investigations, and developed effective corporate compliance programs.
Whistleblower Litigation
A major 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, they have the potential to damage regulatory relationships, which could lead to severe financial and other consequences, including criminal prosecution.
Our energy litigators have unmatched experience in energy-related whistleblower litigation and related investigations. We 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 needs of the litigation and the potential for harm to the regulatory relationship.
Government Contracts Litigation
A number of our energy litigators have substantial government contracts litigation experience. That experience has allowed us to represent several of our energy clients in contract disputes with the federal government. We have successfully challenged efforts by the federal government to procure energy services competitively. With the advent of competitive energy markets, federal and state governments are again making efforts to procure energy services through competitive bidding. Our energy litigators have extensive experience in handling both pre- and post-procurement disputes involving government contracts and can leverage their understanding of the energy industry to assist our clients in meeting their business objective of selling energy to the government.