For decades, we have represented numerous electric and gas utility companies, independent power producers, oil & gas firms and other energy service providers throughout the U.S. and overseas, in connection with their strategic and day-to-day corporate and transactional matters. We are highly experienced and knowledgeable when it comes to the industry-specific issues our clients face, and we are proud of our long-standing reputation for successfully closing the transactions they pursue, enabling them to capture significant value that is vital to their businesses.

In the power sector, our team’s representative corporate and transactional engagements include:

• Advice to public and private company Boards of Directors and Senior Executive Officers on numerous energy, regulatory, corporate governance and fiduciary matters.
• The development, financing, construction, leasing and de-commissioning of power generating facilities (coal, gas and renewable), transmission and distribution facilities and facility upgrades, including environmental control systems (scrubbers, low NOx burners, select catalytic reduction (SCR) facilities) and coal to gas conversions.
• The acquisition and divestiture of utility companies, as well as their power generating stations, transmission and distribution systems, gas distribution systems and associated operations.
• The de-commissioning of nuclear generating stations and associated transactions.
• Power, gas and steam purchase and sale agreements, interconnection agreements, transmission agreements and trading arrangements.
• Fuel purchase and sale agreements and associated transportation agreements, including the development and deployment of refined coal processing strategies.
• Facility management and operation agreements.
• Grid upgrade projects, advanced (smart) meter infrastructure deployments, and home energy management system (HEMS) deployments.
• Corporate restructurings and subsidiary consolidations/rationalizations.
• Call center management and staffing transactions.
• Energy efficiency programs, including state- and municipally-sponsored programs.
• Derivative, hedging and swap transactions.
• Large-scale procurement contracting.
• Real estate procurements, easements, rights-of-way and pole attachment arrangements.
• Software development agreements and intellectual property license agreements.

Our lawyers understand the business of both regulated and unregulated utilities, including the types of business disputes that commonly arise. We have decades-worth of experience assisting utilities in business litigation matters through negotiation, motion practice, mediation, trial, and appeal. Our trial team is experienced in and adept at handling all types of business litigation for utilities, from lawsuits and arbitrations concerning short and long-term power purchase agreements to power supply contracts, vendor contracts, and other complex agreements. Our team further holds significant class action defense experience on behalf of utilities, including experience defending against claims under the Telephone Consumer Protection Act. We also understand the impact of regulation on a utilities’ relationship with contracting parties and others.

Our trial lawyers have a wealth of experience defending electrical and gas utilities in defense of wrongful death, personal injury, and property damage lawsuits. Our defense of electrical and gas utilities ranges from residential fires, to asbestos lawsuits, to electrical contact injuries, to large-scale disasters. With decades of experience representing utilities, we have a deep understanding of our utility clients’ core business values and an excellent working knowledge of the industry.

Asbestos and Silica Litigation

Frost Brown Todd also has extensive asbestos and silica litigation practice. Our attorneys have been heavily involved in national asbestos and silica litigation for more than twenty years, and we offer a depth of experience to navigate our utilities clients through the asbestos and silica litigation they face while avoiding crucial mistakes made by other companies.

Electrical Contact Cases

We handle a wide array of electrical contact cases in defense of publicly regulated electrical utilities, many involving catastrophic electrical burn injuries. Our team is ready to respond rapidly to an incident, retain quality experts in the industry, and be on site for investigation within hours. Over the last two decades, our team has defended over 30 electrical contact cases for publicly regulated electrical utilities.

Electrical Fires

Structure fires often involve a claim that the electrical service malfunctioned in some way and caused arcing or other electrical phenomena, resulting in a catastrophic fire loss. We have handled numerous fire matters where we defended the electrical utility and determined that an alternative ignition source caused the fire, such as intentional acts of an individual or the malfunction of machinery, wiring, or appliances within the structure.

Representative Cases

• Our trial lawyers obtained a defense verdict in favor of an electrical utility company in a motorcycle lawsuit seeking $4.5 million in personal injury damages.
• Our trial lawyers obtained a defense verdict in favor of an electrical utility company and tree trimming company on property damage claims related to a tree fall accident.
• Our trial lawyers obtained a complete dismissal of all claims against an electrical utility company in a wrongful death house fire lawsuit seeking more than $13 million in damages.
• After an aggressive incident investigation and extensive pre-trial discovery, our trial lawyers obtained summary judgment in favor of an electrical utility company in a wrongful death and catastrophic injury electrical contact lawsuit seeking more than $50 million in damages.
• Our trial lawyers gained summary judgment in favor of an electrical utility company on personal injury claims in motorcycle case seeking more than $4 million in compensatory and punitive damages.
• Our trial lawyers obtained summary judgment in favor of an electrical utility company on wrongful death and loss of consortium claims related to a workplace accident.

Due to the breadth of our experience in nearly all of the environmental regulatory programs, utility clients have turned to us in a variety of situations, including:

• Defending against regulatory agency enforcement actions.
• Overseeing environmental issues in transactions.
• Counseling on regulatory updates and compliance issues.
• Negotiating and, if necessary, appealing environmental permits.
• Overseeing and advising in environmental remediation or cleanup situations.
• Providing legal support and counsel in the event of an environmental crisis.

Our attorneys have developed a deep understanding of the industry, how it works, and the environmental challenges it faces. We closely monitor new and emerging environmental issues that impact the utility industry and regularly counsel clients in these areas.

See, “Environmental Practice: Experience Highlights” to explore examples of our work in the utilities industry.

We represent utilities in bankruptcy matters on a nationwide basis, providing consistent cross-jurisdiction support grounded in a focused understanding of each client’s business and the issues unique to their industry. Our team has significant experience handling high-profile bankruptcy actions for a number of our utility clients, including:

• Enron (New York, NY)
• Lyondell Chemical Company (New York, NY)
• Chrysler (New York, NY)
• Borders Books (New York, NY)
• Value City (New York, NY)
• Collins & Aikman (Detroit, MI)
• Flying J (Delaware)
• Linens N Things (Delaware)
• RadioShack (Delaware)
• Toys R Us (Delaware)
• Smurfit Stone (Delaware)
• Circuit City (Richmond, VA)
• James River Coal (Richmond, VA)
• Max & Erma’s (Pittsburgh, PA)
• Payless Shoes (St. Louis, MO)
• Windstream (New York, NY)

Expertise Specific to Utility Companies in Bankruptcy

We are experienced and knowledgeable with respect to the industry-specific issues utility providers face as creditors and suppliers in Chapter 11 reorganizations and Chapter 7 liquidations. In light of the special Bankruptcy Code provisions which apply only to utility providers, our team has developed appropriate and effective defenses to Bankruptcy claw back actions through our many years of defending utility companies.

Types of Services

We provide the following services to our utility provider clients:

• Provide planning advice when it appears that a customer is in financial trouble and may be headed toward bankruptcy.
• Guide providers and creditors through Chapter 11 reorganizations and Chapter 7 liquidations.
• Represent utility providers with regard to bankruptcy issues involving supply contracts, power purchase contracts and pole attachment agreements.
• Negotiate and effectuate adequate assurance measures to protect our clients for post-petition utility services provided to customers who are in the midst of a bankruptcy proceeding.
• Defend our clients against various stay violation matters, preference claims, fraudulent conveyance claims, and other claw back claim actions.
• Review daily bankruptcy reports to identify matters in which our clients may have an interest.

Employees now place a premium on retirement, health and other benefits—one of the most heavily regulated aspects of the employment relationship—and for this reason, employers of every size and industry count on us to help them establish and maintain attractive, fully compliant benefits plans. Our team looks beyond a one-size-fits-all model to develop compensation and benefits programs that reinforce our clients’ priorities while helping them attract and retain the right employees and executives.

Our attorneys regularly design, implement and administer supplemental benefit programs (retirement and welfare benefit plans) to attract and retain key management in compliance with complex tax and ERISA rules and sensitive to regulatory oversight of utilities.

With experienced attorneys and former journalists, elected officials, legislative staff members, and leading campaign strategists on our bipartisan roster, we help businesses and organizations of all sizes build and strategically invest political capital. Our team provides well-rounded, solution-focused guidance. Our utilities industry team regularly performs lobbying services on behalf of our clients. Some examples of recent representation include:

• Public/Private Partnership (PS) Consultant on the City of Brandenburg, KY wastewater treatment plant.
• Consultant and Lobbyist on behalf of one of Kentucky’s largest electric utilities.
• Lobbied Kentucky Energy and Environmental Cabinet for changes in drinking water regulations.
• Drafted recently adopted legislation overhauling PSC’s regulation of solid waste haulers.
• Lobbied Legislature, state agencies, and PSC on behalf of the municipal power system, which includes (with PSC support) legislation overhauling the municipal power system rate approval process.
• Lobbied Legislature, state agencies and PSC on behalf of an association of rural water and sewer utilities.
• Successfully lobbied Legislature to approve DEP rules establishing favorable fracking fluid disclosure program.