Crisis Response &
Incident Investigation


Extension of FCPA Pilot Program Signals Commitment to Proactive Disclosure

Posted on: June 28th, 2017

The extended life of a Department of Justice program that promotes self-disclosure of violations of the Foreign Corrupt Practices Act signals a continued emphasis on individual culpability, according to two Eversheds Sutherland (US) lawyers experienced in defending against government investigations.

Olga Greenberg, who co-leads the firm’s Corporate Crime and Investigations and Securities Enforcement teams, co-authored a recent legal alert assessing the DOJ’s plan to keep the FCPA Pilot Program in operation. It had been scheduled to expire on April 5.

The extension means the DOJ “will continue to encourage proactive disclosure and remediation of potential FCPA violations for at least the near future,” wrote Ms. Greenberg with counsel and co-author Yvonne Williams-Wass. Both lawyers advise and defend companies confronted with internal and government investigations.

The FCPA pilot “emphasizes the identification of culpable individuals – including executives – by companies as part of full cooperation and disclosure.” The stated goal has been to promote greater accountability by motivating companies to voluntarily report misconduct, fully cooperate with investigators, and, where appropriate, remediate flaws in their controls and compliance programs, the two lawyers explained.

Last year was a record-breaking one for FCPA enforcement actions brought by the DOJ and the Securities and Exchange Commission. And during his confirmation hearings for Attorney General, Jeff Sessions said he would enforce the FCPA “as appropriate based on the facts and circumstances of each case,” notwithstanding President Trump’s earlier criticism of the law.

Jack Massey, Steve Roberts Offer Advice for In-House, Outside Counsel in CLE Event: ‘Perfecting the Partnership’

Posted on: June 23rd, 2017

Eversheds Sutherland (US) attorneys Jack Massey and Steve Roberts are presenting “Perfecting the Partnership: What In-House Lawyers Wish Outside Counsel Understood About Litigation and Vice-Versa” to the Houston chapter of the Association of Corporate Counsel. This continuing legal education event is set for June 28, 2017.
Corporate dispute resolution and litigation can involve huge, bet-the-company trials to breach-of-contract matters that are handled out of court. All require careful strategic planning and an understanding of the counterparties and issues, all with an eye toward business objectives.A panel of veteran litigators will discuss best practices in working with outside counsel on disputes including:
• Beginning of matter strategic planning and scoping
• Communication
• Budgeting
• When things don’t go as planned
• End-of-matter feedback
Mr. Massey and Mr. Roberts are commercial litigators with years of experience working with in-house counsel. They also have successful track records of handling crisis response and internal investigations. Both were key players in the investigations and litigation following the BP Macondo oil spill in the Gulf of Mexico in 2010.

Mark Thibodeaux Quoted on Cybersecurity Risk, Liability Issues in Law360

Posted on: October 17th, 2016

Houston attorney Mark Thibodeaux, Deputy Practice Leader of the Cybersecurity and Privacy team for Sutherland Asbill & Brennan, was quoted by Law360 in an article exploring liability risks from cyberattacks on energy companies.

“The biggest security risk for the energy industry is these cyber-physical attacks, it’s not just data being stolen and moved around. The big liability risk is a power grid shutdown, or an overpressured pipeline, or a drilling rig in the Gulf of Mexico that is attacked and causes a major oil spill,” Mr. Thibodeaux said in an article headlined “5 Ways Energy Cos. Can Limit Legal Fallout From Attacks” (subscription required).

The article notes that the U.S. Department of Homeland Security and the Federal Energy Regulatory Commission are just two of the regulatory agencies putting pressure on oil and gas and power companies to make every effort to protect their increasingly automated layers of industrial controls. And while energy infrastructure companies are heavily insured, damages or losses from cyberattacks may be excluded, or greatly limited by insurance policies.

A Lloyd’s of London report estimated that a cyberattack that shuts down significant portions of the U.S. electric grid could have a $1 trillion impact on the U.S. economy, with insurers paying out more than $70 billion in claims.

“There’s not enough insurance in the world to cover a major event affecting a large portion of the grid,” Mr. Thibodeaux said.

He noted that energy companies also need to protect against contractors accidentally compromising their cybersecurity protections and should explore this question: “Does your contractor have deep enough pockets to protect you?”


Jack Massey Writes on Crisis Response in Texas Lawyer Newspaper

Posted on: October 10th, 2016

Houston commercial litigator Jack Massey, who is on the Sutherland Asbill & Brennan crisis response team, outlined what goes on behind the scenes of a major disaster in an article for Texas Lawyer newspaper.

Headlined “The Aftermath of Deepwater Horizon: Responding to a Catastrophe,” the article’s publication coincided with the recent release of the movie, “Deepwater Horizon.” As a member of the legal team in Houston that represented the drilling contractor in the real Deepwater Horizon disaster of 2010, Mr. Massey wrote: “By my count, what happened on the rig was litigated at least five times,” counting the regulatory hearings, a presidential oil spill commission, the assessment of investigative reports, the BP employee prosecutions and finally the federal multidistrict litigation. In addition, there were the demands from the media, state governments, Congress, shareholders, employees and other regulators.

“Books could be written about the particulars of these actions, but they share one overarching characteristic: Each was greatly influenced by how the parties reacted in the days and months following the blowout. Practically speaking, the successes (and failures) of the parties’ crisis responses drew battle lines, framed issues, and materially affected liability,” Mr. Massey wrote.

He listed the major steps essential for dealing with such a crisis: coordination, control, mobilization of the best experts, and finally, playing the long game, which is aided by people who have been through big crises before.

His conclusion: “Dwight Eisenhower said that plans are nothing, but planning is everything. That’s the essence of crisis response — knowing the risks and opportunities so well that any exigency can be handled.”

Houston Partner Mark Sherrill Quoted on Texas Bankruptcy Spike

Posted on: July 21st, 2016

Sutherland Asbill & Brennan LLP bankruptcy Partner Mark Sherrill was quoted in the Houston Chronicle in an article headlined “Bankruptcy filings on rise in Houston,” which zeroed in on the oil price collapse and its impact. The story reported that the world’s Energy Capital saw 210 companies file for Chapter 11 protection in the U.S. Southern District of Texas during the first six months this year. That compares to just 98 filings for the same period in 2015.

The bankruptcy spike didn’t surprise Houston economic observers. And Mr. Sherrill noted that as the downturn dragged on and lenders cut off credit, the financial outlook only darkened for many companies.

The numbers cited in the article may actually under-represent the true picture. The data did not include Houston-based companies that filed for Chapter 11 in other states, such as Delaware. Mr. Sherrill told the Chronicle that in the past, large companies favored Delaware and New York for their experience and efficiency. However, he said, Houston’s federal court has changed some administrative rules to match Delaware’s speed, and that has perhaps encouraged more companies to file in Houston.

Mr. Sherrill joined the Houston office from Sutherland’s Washington office earlier this year to focus on complex energy bankruptcy matters. In recent months, he has been widely quoted in Texas and energy media on the potential industry impact of bankruptcy court rulings that allowed certain distressed producers to break gas-gathering contracts.


Data Privacy Team Writes Law360 Series on Cybersecurity Information-Sharing Act

Posted on: February 23rd, 2016

Houston commercial litigator Mark Thibodeaux, Deputy Practice Leader of Sutherland’s Cybersecurity and Privacy team, recently co-authored a two-part Law360 series examining the federal guidance and questions that remain about the full scope of the benefits from the Cybersecurity Information Sharing Act of 2015.

The information-sharing system has been praised by many companies that recognize it “can be used to monitor or operate defensive measures and combat cyberthreats,” Thibodeaux and his colleagues write in Part I. “There are also benefits to providing information. Many companies are facing similar cyberthreats and in many cases are facing the same attackers.”

Among the points made in the article, headlined “Information Sharing Under CISA: What It Means For Companies,” is the observation that liability protection may be “one of the most important incentives for companies to consider … but may not be the shield that many think it is.”

Part II in the series, headlined “Information Sharing Under CISA: How DHS Guidance Helps,” examines the recent guidance provided by the Department of Homeland Security. The DHS identifies the government processes that encourage information sharing and the steps companies should take to benefit from CISA.

Ultimately, the authors conclude, CISA provides a framework for companies to consider whether information sharing is right for them.

Co-authors of the series with Mr. Thibodeaux are Washington Partner Daniel Frank, who advises clients on cybersecurity and regulatory matters, and Washington Associate Allison Speaker, who assists on cybersecurity matters and advises on energy regulatory matters.


Expansion of Sutherland’s Texas Energy Practice Makes Headlines

Posted on: February 10th, 2016

Sutherland Asbill & Brennan’s addition of more energy lawyers in Texas made news in several publications. The Houston Chronicle quoted Houston Partner in Charge Daniel Johnson, who described the firm’s new additions as part of an effort to represent clients facing the consequences of falling oil prices.

In an article headlined, “Sign of the times: Law firm adds energy bankruptcy partner in Houston,” the Chronicle also quoted Mr. Johnson as saying he expects to do more energy-related hiring.

The article pointed to Mark Sherrill, who moved from Sutherland’s Washington, D.C., office to Houston to focus on complex energy bankruptcy matters. The addition of John Zerwas Jr., the former policy adviser in the Texas governor’s Budget and Policy Division, to Sutherland’s Austin office also was noted, along with update that three other energy lawyers joined the firm in the state’s capital last year.

The Chronicle also reported that Daniel LeFort, a former in-house counsel for Shell and Exxon Mobil, had joined the Houston office as counsel.

Texas Lawbook also reported on Sutherland’s expansion in a story headlined, “Sutherland Expands Energy Capabilities in Texas” (subscription only). “Sutherland Asbill & Brennan is expanding its energy practice in response to turbulence in the oil and gas industry,” the online publication said.

Houston Partner in Charge Daniel Johnson Makes Select ‘Who’s Who in Energy List’

Posted on: December 8th, 2015

Daniel Johnson, Partner in Charge of the Houston office of Sutherland Asbill & Brennan LLP, was selected among the Bayou City’s most influential energy leaders by the Houston Business Journal, which recently published its 2015 Who’s Who in Energy list.

This year’s rankings were among the most selective in recent years with only 38 local lawyers chosen among the leaders in various sectors of energy and the firms that service energy companies. The honorees were chosen by the publication’s journalists based on nominations.

Mr. Johnson has focused his practice on energy litigation since the beginning of his legal career more than a decade ago. He was deeply involved in the successful representation of an international drilling contractor in high-profile litigation after the 2010 Gulf of Mexico oil spill. Mr. Johnson also advises energy clients on regulatory investigations and compliance issues, contractual liability exposure and risk shifting provisions, and incident response and crisis management.

With colleagues in New York, London, Washington D.C., Austin, Atlanta, and Geneva, Sutherland’s Houston office continues to forge the firm’s strong reputation as a trusted legal adviser in the energy space.  Daniel’s selection to the Houston Business Journal’s energy leaders list is continued confirmation of Sutherland’s reputation in the Houston energy market in the areas of crisis management, project development, maritime law and commercial litigation.

Partner David Baay Quoted by Law360 on Significance of BP Settlement

Posted on: August 5th, 2015

Houston Partner David Baay praised U.S. District Judge Carl Barbier for his “excellent” management of the insurance dispute between BP and Transocean Ltd. in an interview with Law360. Mr. Baay, a member of the Sutherland Asbill & Brennan team representing Transocean in the litigation that followed the 2010 Gulf of Mexico oil spill, was interviewed by the online legal news service for two stories about recent developments in the case.

BP agreed to an $18.7 billion settlement with the U.S. government that ended most of the civil litigation related to the disaster. In a July 2, 2015, article headlined, “Without a Deal, BP Would Have Faced Harsher Penalties” (subscription required), Mr. Baay told Law360 that BP “didn’t have any other recourse” once the oil company failed to convince the U.S. Supreme Court to review Judge Barbier’s decision on liability under the Clean Water Act. “I think the settlement makes sense,” he said.

He also noted that a lesson other companies should take from the outcome is that a very significant portion of the settlement was the result of the Oil Pollution Act, Clean Water Act and natural resources damage assessments. The amount of the settlement was related to the lengthy time it took to cap the gushing deepwater well.

A July 6 follow-up article, headlined “’Masterful’ Judge Credited For BP Case’s Timely End” (subscription required), examined Judge Barbier’s handling of the BP-Transocean litigation. Mr. Baay also was quoted in that story.

Early on, the judge had “a script or playbook that he charted for this, dividing it up into multiple phases,” Baay said. “And I think part of his thinking in doing that was to allow the possibility for settlement after each of these phases, because the parties would have a preview of what their total exposure would be given the initial liability finding and then the total hydrocarbon release finding, and then ultimately, what the multiplier was going to be under the Clean Water Act.”

Mr. Baay called the judge’s oversight “excellent,” in large part due to his thorough planning.



Partner Jack Massey Quoted in Midstream Business Magazine on Pipeline Safety

Posted on: May 19th, 2015

Sutherland Asbill & Brennan partner Jack Massey was quoted recently in Midstream Business magazine on the move toward tougher federal regulations for gas pipelines and trains carrying crude oil.

“What’s driving new regulations and change to regulations right now is public concern about safety, which stretches from Congress and regulators to industry and the people,” Mr. Massey told the magazine. “I think that concern will best be handled through strong collaboration between the regulators and industry. The industry’s done a very good job of being on the front end of safety regulation and adopting reasonable regulation, and I think that will continue.”

Mr. Massey noted that as more oil and gas moves through the expanding midstream system, and as towns and suburbs grow around formerly isolated pipelines, “the risk of incidents in high-consequence areas increases. That’s something that will hold the public eye and drive a regulatory and safety agenda.”

The article headlined, “Safety First, As a Rule” (subscription required), appears in the magazine’s April issue.