Experience
American Energy Corp. v. Charles Datkuliak, et al.
Won declaratory judgment allowing our client to mine in excess of $4 million of coal over the objection of the gas well owner/operator. Successfully argued the case on appeal to the 7th Appellate District, and the Ohio Supreme Court refused to accept jurisdiction.
The case set multiple precedents for gas/oil well interference with coal rights. Despite the efforts of multiple oil/gas associations to have this decision reversed on appeal and in the Ohio Supreme Court, our client won at each stage of the procedure.
Anonymous Plaintiffs v. Large National Coal Company
Our firm represented a large national coal company in its claims for breach of contract, fraud, misrepresentation and tortious interference with contract involving multiple coal contracts and assignments of contract for coal for a power company's North Carolina generating station. A settlement was ultimately reached.
Arbitration
I am experienced in handling such matters individually as well as the chairman of multi-member panels hearing and deciding private arbitrations involving large publicly traded land holding and operating companies to smaller privately held companies addressing disputes over coal reserves, leases, contract mining agreements, and sales agreements, with amounts at stake ranging from less than $1 million to in excess of $100 million. I am also experienced in handling other, non-coal related, commercial disputes as a former American Arbitration Association commercial panel member.
Arch Coal v. Tuco, Inc.
We were advising and assisting the client in very contentious negotiations over a price adjustment provision in a long term, high volume coal supply contract. As it began to become apparent the negotiations were unlikely to reach a mutually acceptable conclusion, we helped formulate a strategy that resulted in a complete re-negotiation of the contract, resulting in new pricing and other significant concessions by the utility. We filed suit on behalf of our client in the 6th Judicial District, Campbell County, Wyoming in anticipation of the filing of a claim by the Defendant utility in its own jurisdiction in Texas. The existence of the case in Wyoming assisted in reaching a commercial resolution to the dispute on terms favorable to the client.
Coal Producer v. Electric Utility
I served as the Coal Producer's party-appointed arbitrator in a dispute over the propriety of a claimed force majeure under a large-volume, long-term coal supply contract, and the liability for the cost of purchasing substitute coal for coal my client did not deliver. After prevailing on a summary judgment motion regarding some of the technical coal mining force majeure issues, the case was settled very favorably to the client. The utility accepted the propriety of the claimed force majeure, and a major portion of the contract was renegotiated.
Coal Supplier Claims
Argued, defended and prosecuted force majeure and breach of contract cases on behalf of coal suppliers.
Corporate Merger
We developed a structure which allowed the economic benefit of certain non-assignable coal supply agreements to be realized by the new entity without breaching the anti-assignment provisions.
Corporate Reorganization and Membership Unit Sale
This transaction involved a corporate reorganization of several limited liability companies which collectively owned or controlled certain coal producing and related assets followed by the sale of all of the membership units for approximately $20,000,000 to a publicly traded company. Our firm’s experience in mergers and acquisitions, natural resources and tax matters enabled the client to maximize membership unit value and complete this transaction in an efficient and timely manner.
Expert Witness
I was retained by a large Pittsburgh law firm to assist its attorneys and to provide testimony as an expert witness in a circuit court proceeding in West Virginia pertaining to asset purchase agreements for coal properties, operations and permits. I was admitted as an expert witness and provided testimony about these matters in the Circuit Court of Greenbrier County that helped achieve a favorable result for the client of the firm which retained me.
Former Client v. Kentucky Law Firm
Defended law firm and its partners in a matter involving coal property valuation issues.
Large National Coal Company v. Power Producer
Our firm represented the Plaintiff in this lawsuit, a large national coal company, for bad faith breach of a long term requirements contract which resulted in significant reductions in the tonnages of coal purchased from our client. A favorable settlement was reached while the case was pending in arbitration.
Long-Term Extension to Coal Supply and Transportation (Rail and Barge Pieces) Agreement for Large East Coast Utility
This was a changing market conditions driven commercial agreement addressing the purchasing utility's desire to control costs and the selling entity's desire to obtain a solid commitment for base load tons for substantial mining operations. The value of the amended package of coal supply and transportation agreements was in excess of $75 million.
I served as the client's primary counsel in the negotiation and preparation of definitive agreements to accomplish the client's goal of achieving the extension of the term of an agreement otherwise set to expire on terms and conditions favorable to the client, including pricing and quantity provisions.
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.