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Energy Litigation

Fuel Supply Contract Litigation

Represented the owner of a cogeneration facility in a confidential arbitration against its previous coal supplier, which claimed that its contract had been wrongfully terminated after the financial terms of the agreement were re-opened and the parties failed to reach agreement on new terms. After a three-day hearing, the arbitration panel issued a unanimous decision in favor of the client, rejecting the supplier's claim that the client had negotiated in bad faith.

Represented Indiantown Cogeneration, L.P., an affiliate of Goldman Sachs and Energy Investors Funds, in an arbitration against Century Coal, LLC arising out of Century's failure to perform under a Coal Supply Agreement. Obtained summary judgment against force majeure defense based on alleged permitting and mining difficulties. After a three-day hearing on damages, the arbitration panel unanimously awarded the client nearly $4 million in damages and discovery sanctions.

Represented Cedar Bay Generating Company, an affiliate of Goldman Sachs, in litigation against Massey Coal Sales, Inc. in which Massey sought an injunction precluding termination of a Coal Supply Agreement. After a hearing, the court denied the requested injunction, embracing Cedar Bay's argument that no irreparable harm would occur in the absence of an injunction.

Represented the owner of a cogeneration facility in a confidential arbitration against its coal supplier. The coal supplier asked that its previous failures to deliver be excused based on alleged force majeure events, including adverse mine conditions and supplier non-performance, and to rescind the coal supply agreement on the ground that the data used to calculate and adjust the coal price was no longer available. After the arbitrator granted the owner's motion to compel discovery of documents initially withheld by the coal supplier, the case settled on confidential terms.

Represented the owner of a cogeneration facility in a confidential arbitration against its coal supplier. The coal supplier asked the arbitrator to rescind the coal supply agreement due to alleged irregularities in the data used to adjust the coal price under the Agreement. The supplier also sought to recover damages on the ground that the client's rail carrier had not provided rail cars to transport the coal from the mine to the facility. After the arbitrator granted the client's request for an expedited hearing, and rejected the coal supplier's request for delay, the case settled on confidential terms.

Represented Chambers Cogeneration Limited Partnership, an affiliate of Goldman Sachs, in litigation against its coal supplier, Consol Energy. Consol asserted claims for breach of contract and fraud, and sought to terminate its contract to deliver Chambers' coal requirements, based on allegations that Chambers had improperly ordered coal to generate electricity for power sales commitments entered into after the execution of the coal contract. The case settled on confidential terms.

Represented Cogentrix of Rocky Mount (CRM), an affiliate of Goldman Sachs, in defense of third party claims brought by its coal supplier, Arch Coal Sales, in federal court in North Carolina. Obtained an order staying all claims against CRM pending arbitration of those claims, thereby avoiding the cost of federal court litigation and a jury trial. No arbitration was initiated.

Currently representing Mirant Energy Trading, LLC in litigation against Alpha Coal Sales, LLC, pending in Georgia state court. Mirant seeks damages resulting from Alpha's non-performance under a Coal Supply Agreement that Alpha claims is excused due to force majeure, including adverse regulatory orders and geologic conditions within the mine.

Currently representing Spruance Genco, LLC, an affiliate of Goldman Sachs and Energy Investors Funds, in litigation against Alpha Coal Sales, LLC, pending in Virginia state court. Alpha seeks damages and termination of the parties' contract, claiming that the specified pricing formula has not worked as intended and depends on data that was historically unreliable and is currently unavailable. Spruance disputes Alpha's claims in their entirety.

Acted as counsel for Energy Cooperative, Inc. in suit against Northern Illinois Gas Company for breach of a long-term fuel supply contract. After a seven-week trial, the jury returned a verdict for $305 million, at the time the largest verdict ever in an Illinois state court action.

Represented Black Butte Coal and Big Horn Coal in a breach of contract suit against Commonwealth Edison.  After a 13-week trial, the jury returned a verdict for $39.4 million, 100 percent of the relief requested.

Represented SMC Mining, Wolf Creek Collieries and Kermit Coal in litigation regarding Carolina Power & Light's attempted termination of a long-term coal contract. Secured a TRO forcing continuation of deliveries and settled case on the eve of trial on favorable terms that included substantial payments from CP&L.

Power Purchase Agreement Litigation

Defended an independent power producer in a confidential arbitration against an electric utility, which sought reimbursement for nearly $30 million in electricity market costs imposed on market participants by the Independent System Operator (ISO). The arbitrators rejected the utility's claims after hearing five days of testimony regarding the contract negotiations, the operation and rules of the electricity market and the ISO, and the effect of those rules (and related FERC proceedings) on the contract's allocation of the costs at issue.

Defended Logan Generating Company, an affiliate of PG&E National Energy Group, in arbitration proceedings against its power customer, Atlantic City Electric Company, which sought termination of a $3 billion, 30-year contract, based on a dispute over heat rate testing at the facility and resulting energy prices. After over 30 days of testimony regarding the contract negotiations, the testing on which energy prices had been based, American Society of Mechanical Engineers standards, and the manner in which the facility was operated during prior tests, the arbitrators denied Atlantic's request for termination, rejected its damage claim for seven years of alleged overcharges, and specified parameters for determining facility heat rate and pricing for the previous two years and prospectively.

Prosecuted case in federal court on behalf of affiliates of Tenneco Power, alleging wrongful termination of a Power Purchase Agreement by defendant Orange & Rockland Utilities, asserting a force majeure defense to an alleged failure to meet development milestones, and seeking $50 million in lost profits. The case was resolved before trial on confidential terms.

Represented an affiliate of Calpine Corporation in litigation against the State University of New York arising out of changes to the government index used to adjust the price of steam sold to the university. Settled on favorable terms after formal mediation.

Represented Calpine Corporation in litigation against Reliant arising out of the termination of several energy trading agreements and a dispute over the amount of the required termination payment. Settled on confidential terms after formal mediation.

Represented the claimant independent power producer in a confidential arbitration in which it asserted claims for wrongful termination of two Power Purchase Agreements and unlawful seizure of contractual deposits by the respondent utilities. Prevailed on force majeure defense after twelve-day evidentiary hearing before panel of arbitrators and obtained a favorable award.

Represented plaintiff Cedar Bay Generating Company as co-counsel at a trial resulting in a $18 million jury verdict against defendant Florida Power & Light for breaches of a Power Purchase Agreement. Secured an order affirming the jury verdict on appeal.

Represented plant owner, Dispersed Power Corporation, an affiliate of National Energy & Gas Transmission, defending against claims by previous project developer for share of electricity revenues under Summer Reliability Agreements with California ISO. Obtained dismissal of good faith and fair dealing claim. Remaining claims settled before trial.

Represented Birchwood Power Partners, an affiliate of GE Energy Financial Services, in litigation against Virginia Electric and Power Company, seeking damages due to VEPCO's refusal to apply energy price redetermined through arbitration process retroactively to the contractual redetermination date. Settled before trial on confidential terms.

Partnership Litigation

Prosecuted a federal court case on behalf of DP&L against co-owners of a natural gas storage partnership by challenging the majority owner's purchase of a minority interest under the partnership's change of control provision. The case was resolved on very favorable terms for DP&L.

Represented Dow Chemical in its lawsuit against Consumers Power for mismanagement and fraud arising out of construction problems at the Midland plant. Favorable settlement limited Dow's share of construction costs.

Power Plant Construction Litigation

Acted as trial counsel for DP&L in its federal court fraud, RICO, breach of contract, and negligence suit against the realtor supplier and architect engineer for the costs of repairing the Zimmer nuclear plant's reactor safety system. Favorable pre-trial settlement for DP&L.

Contract Litigation

Represented affiliates of National Energy Gas & Transmission (NEGT) in litigation and parallel arbitration regarding NEGT's sale of the GTN natural gas pipeline. Defeated two motions to enjoin the $1.4 billion transaction pending arbitration of a dispute regarding a right of first refusal.

Defended US Generating Company, the developer of a California cogeneration facility, in baseball arbitration against Texaco, the proposed thermal host for the facility. Prevailed after submission of written direct testimony and seven days of hearings in which the witnesses were cross-examined.

Represented ConocoPhillips Company against claims brought by Alimentation Couche-Tard Inc. (ACT), the third largest convenience store operator in North America, arising from client's sale of a convenience store business. After nine trial days, the arbitrators issued an award stating that ACT's claims were "denied in their entirety."

Represented BP Pipelines North America in litigation again Murphy Oil USA concerning ownership interests in a crude oil pipeline and alleged breach of a right of first refusal in a pipeline ownership agreement. Settled before trial on confidential terms.

Represented pipeline seller, BP Pipelines North America, in arbitration in which pipeline buyer sought a partial refund of the purchase price. Settled on confidential terms.

Represented BP plc, its affiliates, and their predecessors in various energy-related litigation including royalty disputes and contract claims.

Represented NRG in an arbitration brought by First Energy for breach of a purchase and sale agreement for four midwestern coal-fired power plants, seeking hundreds of millions of dollars in damages. The matter was resolved prior to the arbitration with the approval of the bankruptcy court.

Represented Amoco in defeating class certification in a case alleging fraud and breach of contract in connection with royalty payments. Understood to be only case in which an operator/lessee defeated class certification in a royalty case in the last 10 years.

Representing BP America in putative state-wide class actions alleging fraud and breach of contract in connection with royalty payments over the last 20 years.

Represented BP America in nation-wide class action by working interest owners alleging fraud and breach of contract over 20-year period. Case settled favorably on the eve of trial.

Federal Statutory Litigation

Represented affiliates of SEMCO Energy in a putative antitrust class action, alleging conspiracy to deny competitors equal access to natural gas pipelines. Obtained summary judgment on all claims against the clients before significant discovery had occurred.

Represented Carville Energy, LLC, an affiliate of Calpine Corporation, in litigation against Entergy Gulf States, challenging Energy's calculation of its avoided costs under the Public Utility Regulatory Policy Act (PURPA). Obtained settlement before trial, which included Entergy's commitment to enter into a new power purchase agreement with Carville.

Represented Cogentrix Energy, LLC in preference litigation under the Bankruptcy Code brought by debtor Erie Power Technologies, arising out of payments made before the bankruptcy filing under contracts for the fabrication and delivery of Heat Recovery Steam Generators. Settled $12 million in damage claims against the client for a net payment of $400,000.

Appellate Litigation

Represented Amoco Pipeline Holding Company in litigation arising out of Amoco's sale of its interest in the Colonial Pipeline to Koch Business Holdings in which Amoco sought payment of a $5 million post-closing adjustment, plus $3.3 million in attorney's fees and interest. Obtained an opinion from the Eleventh Circuit Court of Appeals reversing the district court's erroneous decision against Amoco and requiring that judgment be entered in Amoco's favor.

Represented Reliant Energy in the U.S. Court of Appeals for the D.C. Circuit in vacating FERC's New York City capacity price cap methodology.


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