Joseph A. Fischer, III

Complex Litigation

• Defending one of the country’s largest electric generators from more than 20,000 claims alleging wrongful death, other personal injuries, and property damage in connection with power outages during Winter Storm Uri, with those cases consolidated into an MDL in Texas state court. Appointed liaison counsel on behalf of the more than 400 defendants in the MDL.
• Also defending one of the largest pipeline companies in America as well as a global manufacturer and distributor of chemical products and ERCOT load resource in the same MDL.
• Defending the developer of The Woodlands, Texas in claims by more than 500 plaintiffs concerning approximately 300 properties in which Plaintiffs alleged negligent development, violations of Texas Deceptive Trade Practices Consumer Protection Act (DTPA), and breach of express and implied warranties concerning flooding caused by Hurricane Harvey, seeking in excess of $350 million. After extensive discovery, the case was dismissed in defendants’ favor via comprehensive summary judgments. Tré now is defending the judgment on appeal.
• Retained as a strategic litigation consultant to assist plaintiff’s counsel from one of the largest law firms in America prosecute a complicated force majeure dispute on behalf of a major manufacture against the largest domestic supplier of the commodity seeking nearly $100 million in cover and lost profit damages.
• Defending several leading pipeline companies against class action claims and more than 20,000 individual claims of alleged manipulation of the natural gas market during Winter Storm Uri, Hurricane Ike, and other natural disasters.
• Defending a large electric power generation company against multiple state and federal MDL class action antitrust claims alleging the client engaged in a conspiracy to manipulate natural gas and electricity markets through alleged “wash sales,” “Churning,” and false reporting and seeking in excess of $1 billion. Chosen by the ten company joint defense group to lead opposition to class certification in multiple states and successfully did so; subsequently defended that decision for the defense group to the 9th Circuit.
• Successfully defended one of the largest energy infrastructure companies in North America against claims by a Top 10 independent oil producer alleging breach of two gas purchase agreements and seeking $100s of million in damages under life of lease contracts.
• Defending one of the largest electric utilities in the United States against claims by a natural gas supplier and pipeline company alleging breaches of an agency agreement and tariff concerning alleged liability for operational flow order (OFO) penalties and replacement gas charges.
• Representing an ERCOT market load resource, successfully prosecuted claims against a natural gas and electric power marketing company for breaches of an Edison Electric Institute (EEI) master power purchase and sale agreement and related transaction confirmations and qualified scheduling entity (QSE) agreement in connection with ancillary service fees and force majeure issues stemming from Winter Storm Uri.
• Representing the owner of an iconic office tower in Downtown Houston in litigation concerning disputed rent escalation under a long-term ground lease of the real property underlying the building, successfully obtained a creative summary judgement and successfully defending it on appeal.
• Representing several officers and directors of a publicly traded company, obtained Rule 12(b)(6) dismissal of a shareholder’s claims seeking disgorgement of alleged short-swing insider trading profits under Section 16(b) of the Securities Exchange Act and obtained affirmance from the Fifth Circuit. See Jordan v. Flexton, 729 Fed. Appx. 282 (5th Cir. 2018).
• Represented a leading energy supplier and natural gas marketer in claims alleging breach of a North American Energy Standards Board (NAESB) natural gas purchase agreement and transaction confirmation in connection with a disputed event of force majeure related to Winter Storm Uri and attendant orders from the Railroad Commission of Texas.
• Defended the Woodlands Land Development Company against the claims of more than 70 plaintiffs concerning more than 40 properties alleging negligent development, violations of Texas Deceptive Trade Practices Consumer Protection Act (DTPA), breach of express and implied warranties, fraud, and other business torts concerning allegations that undisclosed geologic conditions are affecting plaintiffs’ residences. After heated discovery, obtained full vindication for the defendants via multiple summary judgments, which were affirmed on appeal and declined to be reviewed by the Texas Supreme Court. See Bunch v. Woodlands Land Dev. Co., LP, No. 09–16–00136–CV, 2017 WL 3081095 (Tex. App.–Beaumont July 20, 2017, pet. denied) (mem. op.).
• Defended one of the country’s largest natural gas gathering and midstream companies in multiple royalty cases in several states, including Texas, Louisiana, Oklahoma, Pennsylvania, and Ohio, with allegations including fraud, conspiracy, violations of the Racketeer Influenced and Corrupt Organizations Act (RICO), state and federal antitrust violations, and other business torts. In addition to serving as Texas counsel, Tré also served as national coordinating counsel.
• Represented a midstream company in litigation concerning disputes over the interpretation of several offshore platform and production handling agreements and attendant entitlement to fees and revenue.
• Prosecuted claims by a merchant power plant operator in two cases against Southern California Edison concerning alleged events of default in connection with complex bankruptcy proceedings, alleged improper termination of two long term power purchase agreements, and disputes concerning the proper application of mark-to-market damages clauses and attendant calculations, with one case subject to arbitration and one prosecuted in Los Angeles federal court and with total damages exceeding $100 million.
• Defended a Texas electric cooperative in litigation brought by its customers alleging breach of contract and other disputes concerning the interpretation of long term power purchase agreements that threatened the future of the facility.
• Defended a large electric power generation company in litigation with several former executives concerning disputes over whether a change in control had occurred under certain executive incentive compensation plans and retention agreements. The aggressive defense strategy resulted in an early victory via summary judgment before substantial defense costs were incurred.
• Defended the unregulated natural gas trading arm of a large Pacific Northwest electric utility and transmission and distribution company from claims brought by several natural gas traders alleging breaches of compensation agreements requiring deconstruction of complex derivative transactions with disputed mark-to-market valuations.
• Prosecuted claims by one of the country’s largest natural gas producers concerning breach of representations and warranties against the seller of numerous producing properties and a natural gas gathering system with issues concerning pipeline integrity and 404 permitting.
• Represented the owner of a property in Spokane, Washington adjacent to a federal Superfund site and a separate state-lead site in negotiations with the US Environmental Protection Agency, the Washington Department of Ecology, and the adjunct owners on a comprehensive, favorable settlement allowing no further action, property sales, and future redevelopment into multiple end-uses, including retail, healthcare, and residential.
• Defended a natural gas processor in claims brought by its primary customer concerning alleged breaches of several processing contracts following a disputed force majeure event that resulted in the destruction of a high-sulfur gas processing plant, including claims of reservoir damage and property damage and significant lost profits.
• Prosecuted claims on behalf of a midstream company in litigation against one of the world’s largest manufacturers of power sources and other equipment in the marine and energy markets in connection with alleged breaches of a long term maintenance contract concerning several large bore generators. Following successful enforcement of the parties’ disputed arbitration agreement through appeals to the Texas Supreme Court, prevailing at every level and defeating attempted dismissal via summary judgment, obtained a favorable monetary judgment and an award of attorneys’ fees following an evidentiary trial before a panel of three arbitrators.
• Defended an interstate gas pipeline against claims seeking more than $100 million for alleged breach of a straddle contract with a gas processing plant in Louisiana.
• Represented a former owner of a processing plant in litigation with the current owner concerning responsibility for environmental contamination at the facility involving complex issues of historic and current contamination, comingled plumes, and hydrocarbon fingerprinting.
• Defended a pipe manufacturer in a breach of contract suit over the delivery of allegedly defective pipe for the Keystone Pipeline.
• Assumed responsibility for and successfully concluded the litigation arising out of the July 1999 explosion at Kaiser Aluminum’s Gramercy, Louisiana alumina refinery. The catastrophic explosion spawned in excess of 100 lawsuits both by and against Kaiser, including a certified class of over 24,000 plaintiffs claiming exposure to various chemicals, substantial individual personal injury cases, and complex commercial and insurance coverage disputes. Responsible for managing the legal strategy which resulted in Kaiser’s successful defense of claims against it seeking in excess of $100 million in damages and its successful prosecution of claims to recover its $450 million in damages.
• Represented the owner of a refinery in Louisiana in successful prosecution of design processional negligence claims against an engineering and construction company charged with designing and rebuilding the refinery following an explosion, including claims of damages due to delay.
• Led the early crisis response to significant industrial accident in Louisiana, including an investigation by the federal Mine Health and Safety Administration that began nearly immediately. Managed and coordinated an extensive internal investigation, with both privileged and confidential and public components, and handled the litigation with the injured parties. Aggressively defended the cases within budget, resulting in withdrawal of the majority of the citations which had been issued and a summary judgment, which was upheld by the Fifth Circuit on appeal, in favor of the defense.
• Led a team of lawyers, accountants, and other professionals to successfully reconcile the more than 10,000 claims asserting liabilities exceeding $10 billion filed in Kaiser’s Chapter 11 case in a cost-effective and timely manner. Developed and successfully implemented a strategy for favorably resolving these claims.
• Successfully prosecuted several airbag products liability matters involving wrongful death and serious personal injury against major automobile manufacturers. These expert witness intensive cases involved highly specialized technical issues requiring detailed understanding and evaluation, and were aggressively and contentiously defended by the manufacturers. In each case, successfully collected substantial damages for the plaintiffs.

Environmental and Transactional Matters

• In connection with Chesapeake Energy Corporation’s sale of more than $2 billion in midstream gathering assets, represented the buyer to negotiate and document multiple long-term natural gas gathering and processing agreements concerning midstream assets in the Bossier, Haynesville, Eagle Ford, Marcellus, Niobrara, and Utica shale plays in seven states (Texas, Louisiana, New York, Ohio, Pennsylvania, West Virginia, and Wyoming), with both fixed fee and cost of service structures. Representation included responsibility for negotiating and documenting numerous new gas gathering and processing agreements across the portfolio to support the transaction as well as advising on various aspects of the transaction and having primary responsibility for coordinating with and resolving differences between several competing stakeholders.
• Represented midstream natural gas company in the negotiation and documentation of more than two dozen long-term natural gas gathering and processing agreements concerning assets in the Barnett, Haynesville, Eagle Ford, Marcellus, and Niobrara shale plays, with both fixed fee and cost of service structures, entered over the course of several years with various oil and gas producers and midstream companies.
• Successfully negotiated a groundbreaking multi-site environmental Consent Decree with three federal agencies, including all ten US EPA regions; the states of California, Rhode Island and Washington; and the Puyallup Tribe of Indians. The agreement resolved approximately $700 million of asserted liabilities at approximately 100 separate Superfund sites and ensured favorable treatment of future claims regarding future sites.
• Successfully negotiated the first environmental settlement in Washington state involving the use of a custodial trust and environmental insurance. In this unprecedented agreement, Kaiser Aluminum transferred a fifty-acre federal Superfund site to a custodial trust, negotiated and established for the purpose, to be administered under the supervision of the State of Washington and US EPA Region Ten. Kaiser obtained a full Covenant Not to Sue and contribution protection under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Washington Model Toxics Control Act (MTCA).
• Led a team of lawyers, environmental professionals, outside consultants, and real estate experts to balance competing market, labor, regulatory, and environmental issues and maximize positive value at an indefinitely-curtailed smelter in Spokane, Washington which included more than 1,000 acres of land in various stages of development and entitlement status and which contained a listed federal Superfund site. The strategy generated proceeds in excess of $20 million while resolving over $70 million in environmental and closure obligations.
• Led all aspects of the sale of a curtailed and environmentally-impacted smelter in Tacoma, Washington with material environmental issues, including portions which were in a federal Superfund site. The sale generated cash proceeds in excess of $10 million and resulted in the seller’s release from the attendant environmental and closure liabilities.
• Facilitated the sale of an alumina refinery with material environmental and closure liabilities, including numerous former spills, several landfills and dump sites in various stages of closure, and several existing solid and hazardous waste facilities, which threatened the transaction. Successfully negotiated and implemented an innovative combination of regulatory relief, environmental insurance, and environmental escrows to maximize the sales proceeds while minimizing future responsibility for the seller.
• Led the development and implementation of individualized and innovative exit strategies for approximately two dozen environmentally impacted properties in multiple states owned by a large manufacturing concern, employing a wide-range of legal, regulatory, risk management, and financial tools to facilitate a successful Chapter 11 reorganization.

• Chambers USA: America’s Leading Lawyers for Business, Ranked for Litigation: General Commercial – Texas: Houston & Surrounds
• The Best Lawyers in America (Woodward/White Inc.), Commercial Litigation
• Texas Super Lawyer, Super Lawyers by Thomson Reuters
• Lawdragon 500 Leading Litigators in America
• Rising Star, Texas Monthly

Publications

• O’Connor’s, Texas Oil & Gas – Statues & Regulations, Editor, 2014-2021
• Litigation Affecting the Natural Gas Industry, Chapter 51 of Regulation of the Gas Industry (Matthew Bender Elite Products, 5 volume set) (2019-2023)

In the News

• “Natural Gas Companies Dismissed from Winter Storm Uri Lawsuits,” The Texas Lawbook (February 2023)

• The State Bar of Texas
  • Litigation Section
  • Environmental Section
• The Houston Bar Association
  • Litigation Section
  • Environmental Section
• The Louisiana Bar Association
• Colorado Bar Association
  • Litigation Section
  • Appellate Section
• District of Columbia Bar Association