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Consovoy McCarthy Founding Partner Dead at 48

William Consovoy was being treated for brain cancer.

     
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DC Court of Appeals Eyes Query Over Trump's Scope of Employment

The Second Circuit asked the D.C. court to provide an answer before proceeding to consider the defamation claims of a Trump accuser.

     
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Simpson Thacher Ramps Up ESG Practice With Trio of Hires

The new hires include a practice area leader in New York and two counsel in London and Washington, D.C.

     
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Governor Lays Out Spending Plan for California Courts

The $5.3 billion budget proposal for the judicial branch includes modest increases in spending and money for court construction projects.

     
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Fourth Circuit's 'Tip of the Spear' Sets Plan to Retire This Year

"She has redefined, and now defined for all time, the indispensable position of clerk of court, not just for the Fourth Circuit, but for all of the United States Courts of Appeals," said former Circuit Judge Michael Luttig.

     
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'Driven by Greed:' Judge Sentences Ex-Trump Org CFO Weisselberg to 5 Months Under Plea Agreement

The chief of the Manhattan DA's investigation division, said the DA believes Weisselberg fulfilled the terms of his plea agreement.

     
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Louisiana Royalty Owner Survives Challenge to Demand For Payment

The question in Kim R. Smith Logging Inc. v. Indigo Minerals LLC  was whether a disgruntled Louisiana royalty owner sent its demand for unpaid royalties to the right party.  It turns out that it did.

Mineral interest owner Cherry executed an oil and gas lease. Plaintiff Smith Logging purchased the property and Cherry retained his mineral interests. Operator Indigo/SWN* drilled four Haynesville wells.  

The original lessee assigned the lease to Hopkins. Effective as of August 1, 2019, Hopkins assigned the lease to Valor.  By a December 12, 2019, agreement, also effective as of August 1, 2019, Valor transferred its interests to Indigo/SWN and reserved an override

On November 1, 2019, Smith Logging made a 30-day demand to Indigo/SWN for payment of unpaid royalties under the lease. Counsel for Indigo/SWN confirmed that the royalty was owed.  Indigo/SWN made three payments. The assignment to Indigo/SWN has not been recorded at the time of Smith Logging’s demand.

Smith Logging sued Indigo/SWN, Valor, and Hopkins for cancellation of the lease, damages in the amount of unpaid royalties, damages in the amount of double the unpaid royalties, and attorney fees, alleging on information and belief that Indigo/SWN was the lessee.

Indigo/SWN asserted a dilatory exception of prematurity and a peremptory exception of no cause of action. They argued plaintiff’s claims were premature because it failed to make written demand on Valor, Hopkins, or their predecessors. Alternatively, it failed to state a valid cause of action because Hopkins was lessee of record at the time demand was made. The trial court sustained the exceptions.

Prematurity?

The question in a prematurity exception is whether the cause of action had yet to come into existence because some prerequisite condition had not been fulfilled. Indigo/SWN’s objection was that notice was improper. Here is the statutory scheme for a suit for unpaid royalties:

Written notice of failure to pay royalties is a prerequisite to the judicial demand for damages or dissolution (R. S. 31:137). After written notice, the lessee is given 30 days to respond (R. S. 31:138). The royalty owner has remedies if the failure to pay was because of fraud or was wilful and without reasonable grounds (R. S. 139). If the lessee pays within 30 days, dissolution is not available. If the lessee fails to pay or inform the lessor of a reasonable cause why he didn’t pay, the court may award damages of double the amount of royalties due and attorney fees (R. S. 31:140).

Indigo/SWN became sublessee of the lease on August 1, 2019, and was sublessee when the demand for royalties was made. Because Smith Logging did not send the demand to Hopkins and Valor, notice of cancellation was not effective against them.

A sublessee becomes responsible directly to the original lessor for performance of the lessee’s obligations. Thus, as of August 1, 2019, as sublessee Indigo/SWN was responsible directly to Smith Logging for performance of its lease obligations.

Notice and demand to Indigo/SWN was sufficient. The trial court erred in sustaining the exception of prematurity.

No cause of action?

A no cause of action exception is tried on the face of the pleadings. All well-pleaded allegations of fact are accepted as true and correct and doubts are resolved in favor of sufficiency of the petition. The petition alleged facts sufficient to state a cause of action against Indigo/SWN.  The district court erred in sustaining this exception.

* At some point Indigo was acquired by SWN Production (Louisiana) LLC; hence “Indigo/SWN”.

Your musical interlude.

 

(Originally posted by Charles Sartain)
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Cyberattacks 'Inevitable' for Law Firms, Highlighting Need for Comprehensive Incident Response Plans

November's attack against Cadwalder is just the tip of the iceberg: more than 750,000 Americans had personal information compromised in law firm hacks since 2020, public data shows.

     
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Norm Pattis Questions Judge's Impartiality in Suspension, Requests to Continue Law Practice in DC

"The underlying proceedings in Connecticut resulting in suspension arose in a unique context and were conducted by a judicial officer for whom there are good grounds to question impartiality and the application of due process," the motion said.

     
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Tanger Outlets GC Leaving After 12 Years for Washington Gig

Chad Perry is the longest-tenured member of the company's C-suite, which has seen substantial turnover in recent years.

     
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The Massive Antitrust Class Action Against Qualcomm Isn't Dead Yet

Judge Jacqueline Scott Corley rejected a consumer class' tying allegations over the chip giant's "no license, no chips" policy. But the class' allegations of exclusive dealing with Apple may proceed for now, the judge ruled.

     
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An Audition for ISIS?: Feds and Defense at Odds Over Motive for Deadly Attack on Bike Path

The defendant, Sayfullo Saipov, is facing the first death penalty case sought during the Biden administration by Merrick Garland's Justice Department.

     
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Federal Courts Divided as U.S. 5th Circuit Strikes Ban on Gun Bump Stocks

"Today's ruling usurps Congress's power to define what conduct is subject to criminal sanction and creates grave ambiguity about the scope of federal criminal law," Judge Stephen A. Higginson wrote in his dissent.

     
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SEC Dings McDonald's for Inadequate Public Disclosures After CEO's Firing

An ethics expert said Monday's settlement reflects the growing pressure companies face to be more transparent about the circumstances surrounding the ouster of a top executive.

     
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'A Big Ask.' Test That Would Expand Attorney-Client Privilege Draws Scrutiny From Justices

"I'm wondering if you would just comment on the ancient legal principle of 'If it ain't broke, don't fix it,'" Justice Elena Kagan said.

     
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Tesla and Shareholder Debate Final Discovery Disputes in Director Compensation Case

A shareholder's lawyer said Tesla is cherry picking what to redact without proving why it should be redacted.

     
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Twitter Tussle Teases: Could Indictments Against Ex-Girardi Keese Lawyers Come Soon?

On Monday, a federal judge stayed an embezzlement case against former Girardi Keese partners David Lira and Keith Griffin. Jay Edelson, who brought the case, immediately took to Twitter.

     
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Federal Magistrate Judge Assaulted on Street

The judge was struck in the mouth, the police report states.

     
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Judge Paul Watford Will Resign From Ninth Circuit

The one-time short-list candidate for the U.S. Supreme Court said he plans to return to private practice.

     
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Nominations Sought for Pro Bono Awards

The State Bar of Texas Legal Services to the Poor in Civil Matters Committee and Legal Services to the Poor in Criminal Matters Committee are seeking nominations for their Pro Bono Excellence Award and Indigent Defense Award.

These awards honor individuals, groups, and entities that perform exceptional work in the field of legal services to the poor. Nominations are due by 5 p.m. on Friday, February 24, and the award recipients will be notified in May.

Award nomination forms are available at www.texasbar.com/probonoawards. For more information about these awards, email the State Bar of Texas Legal Access Division at This email address is being protected from spambots. You need JavaScript enabled to view it. or call 800-204-2222 or 512-427-1855.

 

(Originally posted by Will Korn)
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