Experience
Marcellus Shale Leasing Transaction
Ongoing legal services for the sole representative of a large landowners group in a $126 million leasing transaction of Marcellus Shale oil and gas rights covering approximately 35,000 acres of property located in north central West Virginia, with nearly $93 million distributed to landowners to date as initial lease bonus payments. The closing of a companion transaction involving approximately 16,500 acres on the same lease terms and conditions, including lease bonus payments, has been postponed and the brokerage company which holds options on the subject leases has engaged litigation counsel to pursue an appropriate remedy, including specific performance. Part of the ongoing services will include monitoring that litigation. Services included drafting the lease agreement used by the landowners group with the group representative, as well as reviewing and assisting with the negotiation and finalization of the respective purchase and sale agreements and related documents.
Mining Damage Claims
Defended local coal clients on multiple damage claims related to mining.
Resource Sales, Inc., Allied Resources, Inc., Cochise Coal Co., Inc. and SMCC, Inc. v. Louisville Gas & Electric Co. and Kentucky Utilities Co.; Resource Sales, Inc., Allied Resources, Inc., Cochise Coal Co., Inc. and SMCC, Inc. v. Western Kentucky Energy
These companion cases concern disputes over two coal supply agreements. The coal producer declared force majeure and shut down one of its coal mines, thereby reducing (and ultimately stopping) all coal deliveries to our utility clients. Thereafter, our clients had to purchase coal at significantly higher prices than under the agreements, leading to approximately $50 million in damages our utility clients now seek to recoup. The cases seek a declaratory judgment as well as breach of contract claims.
Sales Agreements, Agency, Brokering and Security Agreements for Substantial Coal Brokering Firm
I represented a substantial Appalachian coal brokering firm with respect to various coal sales and transportation arrangements for both domestic and foreign markets, including applicable security and related agreements pertaining to financing assistance to producers from time to time.
Sales and Purchases of Coal Mining Company Assets
I have represented a large Appalachian coal producer in commercial transactions involving both the sale and purchase of underground and surface mines, preparation plants, sales contracts, mining equipment and permits with values ranging from $20 million to in excess of $200 million.
Start-Up of Underground Mine at Greenfield Site
I represented a small Appalachian coal producer in commercial transactions involving the leasing and development of a new underground mine in previously undeveloped coal reserves along with equipment acquisition, and leasing and financing arrangements with both private lenders and traditional banking institutions.
Substantial Amendment and Restatement of Long-Term Coal Supply and Transportation Agreement
This was a unique commercial transaction driven by coal producer's financing sources (substantial domestic and foreign banks) requiring a performance guaranty for the production and shipment of in excess of 500,000 tons of coal per year to certain southeastern cogeneration facility customers. The value of the contract at issue was in excess of $50 million.
I served as the client's primary counsel in the negotiation and preparation of definitive agreements which occurred over several months to accomplish the client's goals of providing its lenders with an acceptable guaranty unique in structure to retain shipping rights under a long-term supply arrangement as well as achieving the client's goal with respect to the consideration for the arrangement with the coal supply subsidiary of a large southern utility company.
Tax Litigation
Amicus representation in United States Court of Appeals for the Sixth Circuit concerning whether the IRS appropriately charged heavy truck excise taxes on heavy-truck chassis, when the vehicles were specially designed for off-highway use, even though they could be operated on highways.
Traveler Coal LLC, Barry Kevin Hall, et al. v. Prospect Capital Corporation, North Fork Colleries LLC and Community Trust Bank, et al.
Represented Plaintiffs in litigation in New York and Kentucky courts over enforcing indemnity and other contractual agreements to assume commercial bank note for coal operations. Have been successful to date on behalf of the Plaintiffs in pursuing claims in Kentucky and in defending arguments to compel arbitration and/or to dismiss the case because of a New York forum selection clause.
U.S. v. Coal Company
We represented the Defendant coal company in a federal suit seeking $20 million in penalties for alleged criminal violations of health and safety standards. After a four week trial, the District Court imposed $300,000 in fines. The U.S. appealed and the Sixth Circuit affirmed.
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