- Weil serves as lead trial counsel for ExxonMobil in a number of disputes in state and federal courts relating to the use of MTBE as an additive in gasoline. The actions have been brought by various States, including New Hampshire, Vermont and New Jersey, seeking to recover for alleged groundwater contamination at sites throughout those states. Most recently, we won a significant victory before the Vermont Supreme Court on an interlocutory appeal by the State of Vermont in a case it commenced in 2014, approximately seven years after the State prohibited the use of MTBE in gasoline. In the lower court, Weil secured a partial victory in January 2015 on a motion to dismiss based on Vermont’s six-year statute of limitations for civil litigation, and the Vermont Supreme Court affirmed in May 2016.
- Weil represented several officers and directors in a shareholder derivative action alleging they breached their fiduciary duties by failing to properly oversee the company’s development of the Point Thomson Unit of the North Slope of Alaska. The court granted our motion to dismiss.
- Weil negotiated an extremely favorable settlement for the client in a multidistrict litigation filed in federal court in Kansas comprising more than 30 putative class actions that have been filed against motor fuel retailers (MFRs) throughout warmer regions of the United States. Plaintiffs allege that they pay billions of dollars extra every year because of MFRs’ alleged failure to adjust the size or price to account for thermal expansion – wherein a gallon of gasoline or diesel fuel has less energy content at warmer temperatures than the same gallon would have at cooler temperatures – and that they are entitled to past damages.
For more than a decade, Weil has represented Kinder Morgan in connection with a number of transformative M&A transactions and related shareholder litigation in courts around the country, including:
- Successfully representing Kinder Morgan as special appellate counsel in an appeal to the Delaware Supreme Court of a $171 million trial verdict issued by the Delaware Court of Chancery against El Paso Pipeline GP Company, L.L.C., a Kinder Morgan subsidiary, in a derivative action brought by a limited partner in a partnership who alleged that the partnership overpaid for certain assets.
- Successfully representing Kinder Morgan in unitholder litigation in Delaware Chancery Court and on appeal before the Delaware Supreme Court that challenged Kinder Morgan’s $70 billion consolidation of three publicly traded subsidiaries, including two master limited partnerships, into Kinder Morgan Inc. Motion to dismiss granted; affirmed on appeal.
- Successfully representing Kinder Morgan in Harris County (Tex.) District Court challenging its $37 billion acquisition of El Paso. Preliminary injunction motion denied after expedited discovery.
- Leading the successful defense against a shareholder action seeking to enjoin Kinder Morgan’s going-private transaction.
Weil serves as lead trial counsel for Spanish energy company Repsol in a major litigation that involves allegedly billions of dollars of liabilities in connection with pollution of the Passaic River in New Jersey, which was dismissed in its entirety on summary judgement on the eve of trial. After a series of settlements between the parties and the state in 2013 and 2014, the Weil team achieved a number of significant and case-changing victories. First, in a February 2015 order granting Repsol’s motion to dismiss, Weil eliminated nine of OCC’s eleven cross claims, leaving only OCC’s claims for recovery based on an alter ego theory of contract liability. Second, in a series of January 2016 recommendations from the Special Master granting Repsol’s motion for summary judgment and denying OCC’s summary judgment motion, Weil eliminated OCC’s remaining claims for recovery based on alter ego and retained its counterclaim under the New Jersey Spill Act against OCC for recovery of the $65 million Repsol paid in clean-up costs in its settlement with the state departments. Those recommendations were entered in toto by the New Jersey Superior Court after several days of oral argument in April 2016. The court agreed with our argument and interpretation of alter ego law, finding OCC could not, as it argued, pierce the veil directly to Repsol. Instead, under its theory of alter ego liability, which included claims against several entities in a multi-layered corporate chain, OCC was required by law to pierce the veil of each intervening corporate entity in that chain. Weil was successful in presenting a number of reasons why OCC could not meet this legal requirement, including OCC’s failure to link any domination by Repsol to its alleged harm, as well as the existence of a solvent entity that stood as an insurmountable barrier between Maxus and Repsol that was able to pay for any obligation allegedly owed to OCC, thereby eliminating any potential of harm or injustice. All claims against Repsol have been resolved, and the court allowed Repsol to pursue its counterclaim against OCC for recovery of the $65 million in clean-up costs it paid in settling with the New Jersey state departments, which was set for trial in June 2016. On the eve of trial, Maxus Energy Corp. filed for bankruptcy. In October 2017, the Superior Court of New Jersey adopted the recommendation of the Special Master and granted Respol’s motion for summary judgment to recover the $65 million from OCC, thereby bringing nearly a decade of litigation to a successful close.