Environmental Litigation
Defended a major Pennsylvania-based metals manufacturer against putative class actions brought by neighboring landowners, alleging that fugitive emissions and odors from nearby facilities constituted a nuisance. The first matter settled for a sum considerably less than the expected cost of defense, before the client incurred any discovery cost, and there is a similarly favorable settlement-in-principle in the second matter awaiting finalization.
Defended a major ferrous metals manufacturer against a threatened Clean Air Act citizen suit arising out of coke plant operations; was able to moot the threatened lawsuitâpreventing potential civil penalties, injunctive relief and attorney feesâby negotiating a consent decree with applicable regulators on an accelerated timetable during the sixty-day pre-suit notice period.
Defended the operator of a major coal-fired power plant against a Clean Water Act citizen suit raising novel issues relating to the "diligent prosecution" bar. The case settled on the eve of trial.
Represented a major Pennsylvania-based non-ferrous metal manufacturer in what is believed to be the first comprehensive, multisite CERCLA cost recovery action, seeking response costs from the U.S. government based on World War II-era production control. The cases, built through archival research and deposition testimony from octogenarian former employees, were settled favorably through mediation for an aggregate recovery exceeding $23 million.
Represented a former Arizona-based manufacturer of pyrotechnic components for missile systems and nuclear weapons in asserting CERCLA claims against the United States arising out of the governmentâs Cold War-era ownership of plant equipment and control over facility operations. The case settled favorably after limited document and deposition discovery, including a commitment for reimbursement of a substantial proportion of future response costs, resulting in an aggregate payment to the client that to date has exceeded $30 million.
Represented a company facing substantial claims arising out of a former affiliateâs operation of uranium mines on the Navajo Reservation in the 1950s, in pursuing CERCLA contribution claims against the United States in its capacity as site owner, operator, and arranger. After compiling a âtrial readyâ statement of position, the matter resolved consensually and favorably without the need for active litigation.
Represented the operator of a merchant coke plant in multiple environmental disputes; was able to preserve its Title V air emission permit, in the face of the Pennsylvania Department of Environmental Protectionsâ decision not to renew, after what is reportedly the longest supersedeas hearing in Pennsylvania Environmental Hearing Board history.
Defended through jury trial and appeals of a series of nuisance claims against a public warehouse, arising out of alleged fugitive dust emissions from its Ohio facilities, limiting the ultimate judgment to a sub-"nuisance value" total.
Representing a major manufacturing company in complex, multi-party mediation involving response costs at the Crab Orchard National Wildlife Refuge Superfund Site in southern Illinois.
Defended a steel services company against a putative class action alleging bodily injury, nuisance and property damage allegedly caused by plant emissions; plaintiffs dismissed their claim with prejudice after the deposition of the lead named plaintiff revealed insuppressible problems proving causation.
Energy Litigation
Successfully defended a major international midstream pipeline and gas storage operator against claims brought by operator of a gas well adjoining one of its Michigan storage fields, alleging that migrating storage gas had impacted well operations. The court dismissed the plaintiffâs tort claims as barred by the statute of limitations. On summary judgment, the court disposed of the remaining inverse condemnation, unjust enrichment and declaratory claims on multiple grounds, with sufficient definitiveness that plaintiff did not appeal.
Represented a major midstream pipeline and gas storage operator in multiple disputes over the validity of âdual purposeâ production and storage leases; these cases were resolved successfully by agreement. In one case, the court held, after a trial on the merits, that use of leased property for the protection of stored gas keeps the lease in effect for all purposes, including oil and gas production, rejecting the contention that production and storage rights under the lease were severable. See Mason v. Range ResourcesâAppalachia, LLC, 120 F. Supp. 3d 425 (W.D. Pa. 2015). The other cases resolved consensually. These rulings allowed the storage operator to realize substantial value from existing leases, by monetizing valuable production rights in deeper strata.
Defending a major midstream pipeline and gas storage operator against False Claims Act claims alleging underpayment of royalties pursuant to gas storage agreements with the United States; motion to dismiss is pending.
Advising developer of a carbon capture and sequestration facility in Indiana on property rights issues associated with the subsurface storage of carbon dioxide, including advice on and drafting of legislation.
Representing the owners and operators of two Georgia utility-scale solar facilities in seeking damages for erosion and sedimentation control failures caused by improper engineering design.
Represented two trusts owning approximately 100,000 acres of severed oil, gas, and mineral rights in central Pennsylvania in a variety of title disputes arising from surface ownersâ efforts to confiscate subsurface rights. In one case, the court invalidated a 1951 default judgment on the ground that it was obtained by fraud. In another case, the court held, for the first time, that a 1908 tax sale did not divest claims to oil and gas rights, because the tax sale purchaser was an agent of the defaulting taxpayer and that the tax sale thus effected a redemption. See Pennsylvania Game Commission v. Thomas E. Proctor Heirs Trust, 455 F. Supp. 3d 127 (M.D. Pa. 2020), appeal pending.
Represented a trust owning oil and gas rights in a lease challenge; in ruling in the clientâs favor, the Pennsylvania Superior Court and U.S. District Court for the Middle District of Pennsylvania both heldâfor the first timeâthat a lease violated the Pennsylvania Guaranteed Minimum Royalty Act because it purported to require the lessor to assign one half of its royalty back to the lessee. See Kendall v. Lancaster Exploration & Dev. Co., LLC, 323 F. Supp. 3d 664 (M.D. Pa. 2018); Southwestern Energy Prod. Co. v. Forest Resources, 83 A.3d 177 (Pa. Super. 2013)
Defended of a major gas storage operator against putative class claims alleging trespass and conversion in connection with its Ohio natural gas storage operations; obtained an early settlement through an innovative counterclaim strategy that effectively negated class claims and through the aggressive pursuit of a federal preemption defense.
Prosecuted condemnation claims on behalf of a major gas storage operator; obtained nominal award of âjust compensationâ following a trial before a panel of land commissioners.
Insurance Coverage Litigation
Representation of a Pennsylvania-based public utility in obtaining insurance coverage for former manufactured gas plant related environmental liabilities; facilitated cost-effective early settlements through an innovative front-loaded voluntary disclosure and mediation process.
Representation of an Ohio-based chemical manufacturer in securing insurance coverage for substantial environmental liabilities associated with a former manufacturing facility, including (among other things) the prosecution of a disputed claim against the liquidator of the Home Insurance Company in state court in New Hampshire.
Represented a major distributor of home building supplies in seeking insurance coverage for product liability claims, including successful effort to challenge insurersâ choice of forum in a preemptive declaratory judgment suit.
Represented one of the nationâs largest diversified financial institutions in what is believed to be the first major lawsuit to address coverage under a vehicle residual value insurance policy. The case settled on the eve of trial for a mid-nine-figure recovery.
Represented a state-owned corporation in New England in pursuing claims under D&O and commercial crime policies for losses arising out of former officialsâ corruption and self-dealing; the D&O carrier paid its limits without the need for litigation, and claims against the crime insurer were settled on generous terms after defeat of its summary judgment motion.
Represented an injured individual, as assignee, in asserting claims against product liability defendantâs excess insurer and insurance broker; matter settled before trial for $9 million.
Represented a Rhode Island-based grocery distributor in asserting against its general liability insurer claims of bad faith arising from insurer conduct in settling a severe bodily injury claim; aggressive case posturing enabled favorable settlement in the midst of discovery.
Represented a consortium of large policyholders challenging the acquisition of a historical liability insurance underwriter before the Pennsylvania Insurance Department. The clientsâ position was vindicated when the successor company, Bedivere Insurance Company, entered liquidation only five years later.
Appellate Litigation
Baatz v. Columbia Gas Transmission, LLC, 929 F.3d 767 (6th Cir. 2019)âObtained affirmance of summary judgment on trespass and unjust enrichment claims alleging migration of storage gas to unleased properties; in a precedent-setting decision, the Court held that Ohio surface owners do not have the right to exclude a gas storage operator from underground strata that the surface owner cannot use.
Crucible Materials Corp. v. Certain Underwriters at Lloydâs, 330 Fed. Appx. 223 (2d Cir. 2009)âObtained reversal of a sua sponte summary judgment entered in an insurerâs favor on a ground not argued by the parties.
Hammersmith v. TIG Ins. Co., 480 F.3d 220 (3d Cir. 2007)âObtained reversal of a summary judgment in an insurerâs favor (on late notice grounds) and clarified previously murky Pennsylvania choice-of-law rules as applied to contract disputes.
In re Madden, 151 F.3d 125 (3d Cir. 1998)âObtained a ruling that a witness employed to produce commentaries for a wrestling promoterâs "900-number" hotline was not a "journalist" entitled to the protection of the qualified federal journalist-source privilege.
Cole v. Pennsylvania Depât of Envtl. Prot., Nos. 77 & 78 MAP 2023 (Pa. pending)âRepresent a major interstate natural gas pipeline company, as an amicus curiae, in arguing that review of Pennsylvania Department of Environmental Protection permitting decisions is within the exclusive jurisdiction of the U.S. Court of Appeals under Section 19(d)(1) of the Natural Gas Act.
Herder Spring Hunting Club v. Keller, 143 A.3d 358 (Pa. 2016)âRepresented a consortium of amici curiae challenging the validity of Pennsylvaniaâs âtax washâ doctrine on constitutional and statutory grounds.
Crosby Valve, LLC v. Department of Insurance, 131 A.3d 1007 (Pa. Commw. Ct. 2016)âRepresented a consortium of policyholders in an unsuccessful attempt to prevent OneBeacon America Insurance Company from transferring its legacy environmental and toxic tort liabilities to an undercapitalized runoff vehicle.
Northern Forests, II, Inc. v. Keta Realty, 130 A.3d 19 (Pa. Super. 2015)âSuccessfully argued appeal confirming that void judgments may be challenged without regard to the passage of time and establishingâas a matter of first impression in Pennsylvania appellate courtsâthe standards for adverse possession of oil and gas rights.
Southwestern Energy Prod. Co. v. Forest Resources, 83 A.3d 177 (Pa. Super. 2013)âObtained a ruling invalidating an oil and gas lease on the ground that it violated Pennsylvaniaâs Guaranteed Minimum Royalty Act.
Matter of Liquidation of Home Ins. Co., 287 A.3d 728 (N.H. 2022)âSuccessfully represented a consortium of policyholders asking the Court to uphold a deadline for amendment of claims in a long-pending insurance liquidation, enabling long-delayed payments on allowed claims.
Donâs Building Supply v. OneBeacon Insurance Co., 267 S.W.3d 20 (Tex. 2008)âRepresenting amici curiae in arguing, successfully, that Texas should adopt an "injury in fact" trigger for coverage of progressive, latent property damage claims under general liability insurance policies.
Clendenin Brothers, Inc. v. U.S. Fire Insurance Co., 889 A.2d 387 (Md. 2006)âSuccessfully represented an amicus curiae in establishing that the "absolute pollution exclusion" does not apply to claims alleging injury from exposure to welding rod fumes.
Braaten v. Saberhagen Holdings, 198 P.3d 493 (Wash. 2008)âWrote the brief in a case establishing, in a matter of first impression in any stateâs high court, that a defendant is not liable for failing to warn of the risk allegedly posed by asbestos-containing replacement parts or insulation that it did not supply.
Taylor v. Elliott Turbomachinery Co., 171 Cal. App. 4th 564, 90 Cal. Rptr. 3d 414 (2009)âWrote the brief in a case holding that a defendant is not liable for failing to warn of the risk allegedly posed by asbestos-containing replacement parts or insulation that it did not supply.
Commercial Litigation
Obtained a precedent-setting summary judgment for one of the nationâs largest consulting firms, on a matter of first impression in Pennsylvania, establishing that computer consultants cannot be liable in tort for alleged malpractice and that disgruntled customers are limited to contract remedies.
Represented a supplier of mining equipment, on its counterclaim, defeating a tunneling contractorâs claim that the machine performed improperly and obtaining a "100-cents-on-the-dollar" jury verdict.
Corporate Representation
Negotiated 188-page loan guarantee agreement for $1.6 billion Inflation Reduction Act loan; presently working on satisfying conditions precedent to closing.
Negotiated agreements for the acquisition of property rights, including the drafting of options, leases, easements and related documents.
Participated in negotiation of complex nine-digit engineering, procurement and construction contracts with multi-national counterparties.
Drafted intercompany agreements and corporate resolutions.
Participated in NEPA environmental assessment process and other environmental permitting matters.
Advised on, and assisted with drafting, state and federal legislation and state implementing regulations, including appearances before legislative committees.
Advised on placement of needed insurance coverage for facility construction.
Advised on land use regulations, including appearance before county commission and preparation for potential litigation.
Drafted employment agreements and nondisclosure agreements.
