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Baker Botts' Appellate Practice Takes a Look Ahead at "Cases to Watch" in 2019

Media Alert

HOUSTON, December 11, 2018 – With 2018 coming to an end, Baker Botts' Appellate Practice looks ahead at several appeals pending in the Texas Supreme Court, the U.S. Supreme Court, and the Fifth Circuit that have important implications for the energy industry and will be decided in 2019.

Below are a few of the cases our Appellate partners are following:

  • Burlington Resources Oil & Gas Co. v. Texas Crude Energy, LLC & Amber Harvest, LLC, No. 17-0266 in the Texas Supreme Court — This case concerns whether the term "amount realized" in an overriding royalty interest assignment, standing alone, indicates an intent to overturn the presumption that royalty interests bear post-production costs. The Court heard oral argument on October 9, 2018, and a decision is expected by the end of the Court's term in June 2019. (Baker Botts argued the case in the Texas Supreme Court on behalf of Burlington Resources.)
  • Texas Outfitters Ltd., LLC v. Nicholson, No. 17-0509 in the Texas Supreme Court — This appeal concerns the propriety of the court of appeals holding that Texas Outfitters, the holder of the executive rights, breached its fiduciary duty to the mineral owners, the Carters, "based on its arbitrary and self-motivated refusal to permit any lease for the purpose of protecting its use of the surface and to exact a benefit from the Carters to their detriment." The Court heard oral argument on October 10, 2018, and a decision is expected by the end of the Court's term in June 2019.
  • Endeavor Energy Resources Co. v. Cuevas, No. 17-0925 in the Texas Supreme Court — This case involves whether a drilling contractor's injured employee may avoid Chapter 95's stringent proof requirements for negligence claims against the premises owner/oil and gas operator by asserting that the operator negligently hired the drilling contractor. The Court granted review on November 16, 2018, with the case to be scheduled for oral argument later.
  • Kinder Morgan Energy Partners, L.P. v. Upstate Forever, No. 18-268 in the U.S. Supreme Court — This case involves whether the Clean Water Act's permitting requirement applies to discharges (here, from a pipeline) that travel through groundwater before reaching navigable waters. On December 3, 2018, the Supreme Court called for the views of the U.S. Solicitor General, signaling its potential interest in the case. If the Court grants certiorari, it would likely issue its decision by the end of the Court's term in June 2019. (Baker Botts filed an amicus brief in this case for the U.S. Chamber of Commerce et al.)
  • Seeligson v. Devon Energy Production Co., No. 17-10320 in the U.S. Court of Appeals for the Fifth Circuit — This decision largely upheld class certification rulings in a royalty lawsuit alleging a breach of the implied duty to market. The Court issued its opinion on October 16, 2018, and Devon has moved for rehearing en banc, arguing that the panel misconstrued Texas oil-and-gas law and overlooked individualized issues that typically prevent class certification of royalty lawsuits.

Interested in discussing some of the cases listed in more detail? Please contact Sheena Cochran to schedule an interview with Baker Botts' Appellate lawyers.

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