Originally published by John Council.
A former Texas prison inmate has filed a legal malpractice case against his former criminal defense attorneys, claiming he spent nearly two years in
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Originally published by Eric Quitugua.
Check out the September issue of the Texas Bar Journal.
Annual Meeting 2018
Coverage of this year’s State Bar of Texas Annual Meeting in Houston.
By Adam Faderewski, Patricia Busa McConnico, Eric Quitugua, and Amy Starnes
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Originally published by Priyanka Kasnavia.
In July 2018, Zostavax manufacturer, Merck & Co., Merick Sharp & Dhome Corp., and McKesson Corp., were named in a lawsuit filed by 100 individuals in a Superior Court of New Jersey. Plaintiffs in this lawsuit are alleging that the manufacturer acted negligently when it came to warning consumers and their healthcare providers of the […]
The post Zostavax Manufacturer Faces Litigation Over Shingles Vaccine appeared first on .
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Originally published by John McFarland.
A recent case from the Ohio Court of Appeals, Fifth Appellate District, raises some interesting questions about forced pooling. The case, American Energy – Utica, LLC v. Fuller, Case No. 17 CA 000028, involves an oil and gas lease covering 40 acres in Guernsey County, Ohio, dated in 1981. The lease was held by production from a single vertical oil well. In 2009 Enervest acquired the lease; it subsequently assigned the deep rights to American Energy.
American Energy wanted to form pooled units to drill horizontal wells in the Utica formationl The lease contained a handwritten provision: “Unitization by written agreement only!” so American asked Fuller for consent to pool. The parties could not reach agreement on pooling Fuller’s lease, so in 2015 American Energy filed an application under Ohio law to force a portion of Fuller’s property into a pooled unit. Fuller then sued to prevent his tract from being force-pooled and for breach of the lease. The trial court granted American Energy’s motion for summary judgment, holding that American had the right to force-pool Fuller’s lease despite the lease language.
The Court of Appeals reversed. It held that, “while we do not disagree that [Ohio’s force-pooling statute] permits unitization of the lease, we do find that in this case, doing so without Fuller’s written agreement was a breach of the lease agreement.” It remanded the case to the trial court “to make a determination of the appropriate remedy.”
The court cited a 1992 Ohio Supreme Court case in support of its conclusion, Burtner-Morgan-Stephens Co. v. Wilson, 5865 N.E.2d 1062 (1992). In that case a landowner challenged the right of his lessee to force-pool his lease on the ground that his lease pre-dated the statute authorizing forced pooling, and thus violated the Ohio Constitution’s prohibition against laws impairing the obligations of contracts. “While the state’s police powers permit the General Assembly to enact legislation governing pooling arrangements, spacing, unitization and other oil and gas drilling regulations, a provision such as that found in [the forced pooling statute] cannot, under the specific facts of this case, be used to retroactively impair the obligation of the contract set forth in the 1949 lease.”
It’s not clear to me that the result in Burtner mandates the result in American Energy. Fuller’s lease did not predate the forced pooling statute. The court held that the Fuller lease was force-pooled. But the lessee breached the lease by doing so. The only remaining issue is what remedy the lessor is entitled to for that breach.
The problem is with the remedy. If American had filed a designation of pooled unit including Fuller’s tract, presumably that act would be ineffective under Fuller’s lease – his lease would not be pooled. Why would Fuller’s attempt to pool by statute be different? If Fuller is force-pooled, how can he prove that he was harmed? What are his damages? What if Fuller’s lease had provided that pooling without his consent results in termination of the lease? Would the court be required to enforce that remedy despite the forced pooling statute? Would Fuller’s mineral interest, now unleased, still be part of the forced-pooled unit?
The Texas Constitution also has a provision prohibiting laws “impairing the obligation of contracts.” Art. 1, Sec. 16. So if the Texas legislature were to adopt a forced-pooling statute, could that statute apply to oil and gas leases entered into before adoption of the statute? For the lessee to argue that application of the statute impaired his lease contract, would the oil and gas lease have to expressly prohibit forced pooling, or would it be enough that the lease prohibited pooling without consent? What if the lease permitted pooling, but with restrictions, so that the lessee could not form the unit it wanted without invoking the forced pooling statute? Would force-pooling the tract be an unconstitutional impairment of the contract?
Or suppose that a standard oil and gas lease is construed to not authorize the drilling of allocation wells, and the legislature adopts a statute authorizing allocation wells? Would application of that statute to leases entered into prior to adoption of the statute violate the Texas Constitution’s prohibition against laws impairing the obligation of contracts?
Issues surrounding pooling are fascinating and never-ending.
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Originally published by Peggy Keene.
A Texas internet service provider (“ISP”) has taken to federal court to complain about the increased pressure from the music industry to monitor copyright infringement. […]
The post Music Industry Battles Internet Service Provider (ISP) Over Copyright Infringement appeared first on Klemchuk LLP.
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Originally published by Cordell Parvin.
I coached Shawn Tuma in 2011. Back then I thought Shawn was the most innovative lawyer I had coached.
Shawn recently joined Spencer Fane where he is co-chair of the firm’s data privacy group. I spoke with him recently and discovered that over the last several months he had done many interviews and over next month he had several additional TV and radio interviews scheduled.
Here is a link to one of his interviews.
How did Shawn get these opportunities?
Put simply, he has built his practice using the social media tools available to all of you. I checked the morning I wrote this and he had 9998 followers on Twitter, just two short of 10,000. I’m betting he has over 10,000 as you are reading this.
If I was hiring lawyers for my law firm, I would prefer to hire lawyers who are on the cutting edge of reaching clients and potential clients. But, how many of those lawyers are there?
Lawyers and law firms are so slow to change. Some time ago I was doing research on change and I found these statistics:
Five kinds of attitudes about change:
- Early innovators (2.6%), run with new ideas
- Early adaptors (13.4%), influenced by (1) but not initiators
- Slow Majority (34%), the herd-followers
- Reluctant Majority (34%)
- Antagonistic (16%), they will never change
You might think these statistics were collected in 2018. In fact, these statistics came from the clerk of Abbington Presbytery, outside of Philadelphia, over 100 years ago.
There have been more changes in the way you practice law and do client development in the last 18 years than in the 29 years I practiced law before that. Think about these changes that just cover connecting and staying in touch:
Which category of attitude about change describes the lawyers your firm is hiring?
The post Is Your Law Firm Hiring Innovative Lawyers? appeared first on Cordell Parvin Blog.
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Originally published by Thomas G. Ciarlone, Jr..
Blake Scott, President of Scott Energy Technologies, joins Tom in the latest episode of KRCL’s energy law podcast. Blake explores cost-effective, risk-reducing, and often innovative strategies for solid drilling waste management and recycling.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
