In February 2022, the U.S. Court of Appeals for the Tenth Circuit laid down a landmark ruling in a lawsuit brought by a group of Colorado municipalities accusing several energy companies of climate change-related harm. Since then, multiple courts have provided further guidance as to where energy companies should anticipate litigating climate change lawsuits. Hicks Johnson senior counsel Brandon Winchester offers an overview of this shifting landscape.

Frequently referred to as “forever chemicals,” per- and poly-fluoroalkyl substances, also known as PFAS, have been subjected to rigorous scrutiny by the EPA, other governments and agencies, and litigants. With some commentators already referring to PFAS as “the mother of toxic torts” and the “next asbestos,” Hicks Johnson partner Adam Dinnell and associate Bryan Zubay consider what the future of PFAS litigation might look like—specifically, how parties might attempt to prove or defeat causation.

Associate Daniel J. Scime came to Hicks Johnson in May 2022 from Skadden, Arps, Slate, Meagher & Flom’s Chicago office. Four months into his tenure, he sat down with us to discuss his goals, expectations, and how he’s settling in.

Under Delaware law, the implied covenant of good faith and fair dealing – intended to ensure that parties deal honestly and fairly with each other when addressing gaps in an agreement – attaches to every contract by operation of law. Hicks Johnson managing partner Andy Hicks and associate James Keefe explain when the doctrine can and can’t be used, drawing on several recent cases for context.

The Delaware Limited Liability Company Act allows for the fiduciary duties of a member to be expanded, restricted, or eliminated by provisions in the operating agreement of an LLC. If drafters intend to eliminate fiduciary duties, however, this intent must be plain and unambiguous. Hicks Johnson managing partner Andy Hicks and associate James Keefe discuss a recent ruling in Delaware’s Chancery Court that illuminates the necessity of this “plain and unambiguous” requirement.

As discussed in part one of this series, a JOA’s exculpatory clause relieves the designated “operator” from liability for certain conduct or activities, but the scope of this relief can vary significantly depending on the words used in the clause. Recently, the Texas Fourteenth Court of Appeals issued an opinion further clarifying the reach of the exculpatory clause in a model JOA. Hicks Johnson managing partner Andy Hicks and partner Marc Tabolsky outline the implications of the court’s holding for parties to a JOA under Texas law.

The Joint Operating Agreement (JOA) is often the key contract between parties that have a shared interest in oil and gas exploration, development, and production in a designated area. One of the most contested provisions of any JOA is the exculpatory clause, which can dramatically alter the degree to which an operator can or cannot be held liable under certain facts. Hicks Johnson managing partner Andy Hicks and partner Persis Dean break down the fundamentals.

In the wake of a recent landmark decision by a federal appellate court in regard to where climate change lawsuits should be litigated, the U.S. Court of Appeals for the Fourth Circuit has provided further guidance as to how federal courts may address attempts to have these cases litigated at the federal level. Hicks Johnson senior counsel Brandon Winchester discusses.

Case law involving limited liability companies (LLCs) is rapidly evolving. Some states, most notably Delaware, permit LLCs to limit or eliminate liability for breaches of fiduciary duty by an LLC’s members or managers. Other states cabin that ability to varying degrees. Disputes regarding breaches of fiduciary duty can often hinge on the scope of any relevant exculpation provisions in the LLC agreement, and the body of law governing the LLC agreement can materially alter outcomes. Individuals seeking to do business in Texas are likely to encounter LLCs that were organized in Delaware (popular for, among other things, this very reason) and in Texas. In this article, managing partner Andy Hicks and associates Bryan Zubay and James Keefe compare key differences between Delaware and Texas law on LLC exculpation provisions.