Medical bankruptcies likely to rise

Gavel to Gavel appears in The Journal Record. This column was originally published in The Journal Record on Jan. 26, 2017.

Clayton D. Ketter is a Director and a litigator whose practice involves a wide range of business litigation in both federal and state court, including extensive experience in financial restructurings and bankruptcy matters.

By Phillips Murrah Director Clayton D. Ketter

One of the central promises of Donald Trump’s candidacy was that, once elected, the Affordable Care Act (also known as Obamacare) would be repealed. Now, with President Trump in office, and aided by a Republican Congress, the ACA’s remaining days are likely numbered.

According to the U.S. Department of Health and Human Services, the ACA has resulted in an estimated 20 million people who previously lacked health insurance becoming insured. Along with the many other effects resulting from a large number of Americans becoming insured, one less discussed consequence was a drop in medical-related bankruptcy filings.

Research by Daniel A. Austen, an associate professor at the Northeastern University School of Law, found that medical costs were a predominant cause of between 18 to 25 percent of all bankruptcies. Since the ACA was passed, one study by the National Bureau of Economic Research found that medical debt had been significantly reduced for those covered by the act.

These findings are intuitive, as hospital visits are often unexpected and typically result in large bills. Without insurance, most individuals lack the financial flexibility to absorb those medical debts. Bankruptcy can be an effective tool in those situations, as it can either allow a person to repay the debt over time or, in some cases, wipe it out altogether.

Problems can arise, however, for those facing ongoing health issues. A bankruptcy filing will only eliminate past debt. It does nothing for liabilities incurred after the bankruptcy is filed. Further, there are certain time restrictions to how often a person can receive a bankruptcy discharge. Depending on the type of bankruptcy at issue, those time limitations can be up to eight years. Thus, if an uninsured person is faced with a health issue that forces them to seek bankruptcy, his or her financial options may be seriously constrained if health issues return before the time limitations have run.

Such scenarios are all too familiar to bankruptcy practitioners, especially given insurance companies’ distaste to insuring people who have histories of health issues. Although there has been a temporary decline in those types of cases, they are likely to make a comeback should Congress choose to repeal the ACA without enacting a replacement or stopgap.

Clayton D. Ketter is a litigator at Phillips Murrah with experience in financial restructurings and bankruptcy matters.

Office Visit: Therapists need liability protection

By Mary Holloway Richard, Of Counsel for Phillips Murrah. This column was originally published in The Journal Record on January 18, 2017.

Mary Richard is recognized as one of pioneers in health care law in Oklahoma. She has represented institutional and non-institutional providers of health services, as well as patients and their families.

Office Visit: Therapists need liability protection

Behavioral health is a unique subset of health care law. I long have been privileged to see firsthand the challenges in working as a therapist while successfully avoiding liability and regulatory land mines, and I am empathetic with patients and families.

I believe it is important to provide protection from liability for therapists and to eschew expansion to predicting dangerousness of patients as the standard of care to which they are held. Therapists must adhere to standards of care that, when breached, result in liability to a patient for harm caused by that breach. Forty years ago the therapist’s burden was expanded to encompass a duty to warn third parties under certain circumstances in Tarasoff v. Regents of Univ. of California.

Recently the Washington Supreme Court decided Volk v. DeMeerleer, expanding liability of mental health professionals to unidentified individuals. As in Tarasoff, reactions among states can range from adopting to rejecting the rule in response. Such decisions are framed in reliance on laws in other states, scholarly articles and treatises, such as the creation of post-Tarasoff California statutory immunity for the therapist’s duty to warn third parties.

The Washington Supreme Court ruled in Volk that a psychiatrist could be liable for homicides even though the victims were not identified as targets of violence. The decision expands the scope of liability beyond the professional’s traditional duty to create a duty to identified third parties and may also result in expanding the rule from mental health professionals to other providers.

It is true that the Volk case concerned the murders of a young mother and her son as well as the suicide of the patient who killed them, and we are all too familiar with the facts of Columbine and Newtown. And society must protect these individuals. We must balance the need to protect our communities from violence with the need to protect our providers from the reprehensible burden of liability for predicting violent propensities.

The Washington Supreme Court stated that whether the patient’s violent actions were foreseeable should have been resolved by a jury and created instability concerning professional liability. It remains to be seen if this holding reflects a national trend of expanding the scope of liability for mental health and other health care professionals.

Mary Richard is a health care attorney with Phillips Murrah and a member of the Behavioral Health Task Force of the American Health Lawyers Association.

Roth: The energy baseline

By Jim Roth, Director and Chair of the Firm’s Clean Energy Practice Group. This column was originally published in The Journal Record on January 16, 2017.

Jim Roth is a Director and Chair of the firm’s Clean Energy Practice.

The energy baseline

The following information is proven by independent, empirical data provided from the nonpartisan Energy Information Administration within the U.S. Department of Energy and is not “fake news,” although it may not jibe with the conventional wisdom created by political theater: American oil production has experienced the biggest increase in history under President Obama’s tenure, up 87 percent.

Don’t believe it? Check out the actual data between 1920 and 2016:

Now to be fair, not all the credit or blame for America’s energy picture can be attributed to any incumbent president, although most observers would say that more often they get the blame than any credit.

The combination of advances in technology like deep horizontal drilling and hydraulic well stimulation has unlocked massive amounts of previously unreachable reserves. Also, high energy prices had attracted a good deal of investment in this industry, which also helped drive exploration and production. And it might even surprise you to learn that production is also up on federal lands, which did require the approval of the Obama administration.

The same real-life data also proves that “clean energy” production, in the form of renewables and even energy efficiencies, have increased at historic rates, almost tripling during the past two terms. Thanks to hydraulic fracturing, cleaner-burning, abundant, American natural gas has replaced old, dirtier coal plants and transformed the power generation sector.

Yet, if you tuned into the divisive rhetoric of the 2016 campaign for president, you may have left disillusioned about America’s energy picture in spite of the facts. Signs reading “Trump digs Coal” may have helped persuade West Virginia, Pennsylvania and Ohio voters, but the winning economics of cheaper natural gas today may trump any federal effort to prop up yesterday’s coal over the next four or eight years. Also, America now employs more people in solar energy alone versus coal, let alone the many other forms of renewable energy like wind, hydro and biomass.

The state of our country’s energy production reality is strong, and growing. And the gains and direction achieved over the last two terms have all benefited our native Oklahoma as well, with historic growth in the forms of energy with which we are blessed.

As America undergoes a change in presidential administrations, it will be interesting to see what detours from these advances are pushed and what change may occur to the current trajectories. And as it relates to the unique combination of national security and economic prosperity achievable by greater domestic oil production and less imported foreign oil, please follow the facts to see what it may mean for you, your family, your business, your state and your country.

It will be important to recall the energy benchmark of predecessors to measure whether the new guy outperforms the previous guys, as it relates to energy independence. When President Richard Nixon, in his second term, famously declared the need for “energy independence within 10 years,” America was importing 35 percent of its petroleum. Nearing the end of oil-friendly Texan George W. Bush, America was importing nearly 60 percent of its total petroleum consumption from foreign sources and now with President Barack Obama it’s down to 24 percent.

Jim Roth, a former Oklahoma corporation commissioner, is an attorney with Phillips Murrah P.C. in Oklahoma City, where his practice focuses on clean, green energy for Oklahoma.

Roth: Let it snow

By Jim Roth, Director and Chair of the Firm’s Clean Energy Practice Group. This column was originally published in The Journal Record on January 9, 2016.

Jim Roth is a Director and Chair of the firm’s Clean Energy Practice.

Let it snow

Snow: (noun) a precipitation in the form of small white ice crystals formed directly from the water vapor of the air at a temperature of less than 32 degrees Fahrenheit/0 degrees Celsius. (Merriam-Webster)

Snow seems to be something that people either love or hate. I love it. In fact, snowfall seems to trigger some inner kid in me, forever long as I can remember, that allows me to enjoy the beauty of it and even admire the way it can slow the hectic world around us even if just for a day. As a kid in the 1970s, I enjoyed making igloos that would last for days and weeks around Kansas City, where I grew up and sledding was also a fun experiment with gravity and speed.

And I recognize that some people really aren’t fans of snow and winter weather. To some it’s just dangerous and an interruption to school, work and life. But there are reasons that all people should welcome snow and what it means for our world. Here’s what I mean.

If you eat you should welcome snow, as it’s a vital part of agriculture production in many parts of America and beyond. Our farmers need snow to provide critical moisture to fields ahead of the planting in the spring. Once it melts it’s providing irrigation across all parts of a farmer’s field, even those areas beyond the reach of irrigation systems.

And it’s even more necessary to help blanket winter crops like Oklahoma’s winter wheat, providing a snow blanket of protection from those extremely cold days impacting the fall plantings. Agricultural shortages, as we’ve seen from drought conditions across parts of our country, are a direct hurt on those producers and an indirect hurt to your family’s budget.

If you enjoy nature you should welcome snow, as its thermal insulation helps many species dig snow caves for hibernating through the winter. Fresh snows, which have a high percentage of trapped air, help to reduce heat transfer and provide great insulation for many animals to survive their cold winters.

If you like a little quiet around you then you certainly must enjoy how fresh snow can lessen sound waves as the snow absorbs snow at the surface. You can probably remember how quiet life feels when you walk outside into a fresh snow. It’s a rare chance to turn down the volume around us.

And beyond these more immediate, obvious positives of snow and snowfall impacting our daily lives, even more significant benefits of snow are how it serves as Earth’s sunblock and water source for our entire planet’s sake.

If you’ve ever looked down at snow on a sunny day you too know that it really reflects the sunlight back off the ground. This may be a nuisance to anyone without sunglasses on, but this reality is critical to helping cool the planet, something that must happen in these winter months or Earth’s climate risks accelerate even faster. And as daylight hours increase toward the spring, late winter and spring snowfalls are even more important as a sunblock, albeit they are becoming rarer over the last 50 years.

Finally, snowmelt from layers of packed snow that have accumulated in mountain regions are one of the primary sources of fresh water on Earth and here in America. It is estimated that our Western states may get as much as 75 percent of their water supply from these snowmelts and even the East Coast areas benefit from the same life-sustaining annual thaw.

So whether you may fear that next snowfall because of traffic worries or you bounce out of bed happy to enjoy a day of play, please know that those tiny frozen water molecules blanketing the Earth are critical to our very survival. Plus, they can be a lot of fun for a kids of all ages.

Jim Roth, a former Oklahoma corporation commissioner, is an attorney with Phillips Murrah P.C. in Oklahoma City, where his practice focuses on clean, green energy for Oklahoma.

Roth: One-eyed vision?

By Jim Roth, Director and Chair of the Firm’s Clean Energy Practice Group. This column was originally published in The Journal Record on December 19, 2016.

Jim Roth is a Director and Chair of the firm’s Clean Energy Practice.

One-eyed vision?

Proverbs 29:18 KJV tells us: “Where there is no vision, the people perish: but he that keepeth the law, happy is he.”

And while there is debate among theologians about certain meanings and interpretations over the centuries, the underlying notion of vision leadership and adherence to it leading to happiness rather than to perish is clear. Equally important to this idea, I believe, is that the vision must be clear, complete and visible with both eyes.

Such is possibly not the case for Oklahoma legislators responsible for creating the vision for Oklahoma’s future. Our 2017 legislators will be asked to digest recent recommendations of public policy from the Oklahoma Incentive Evaluation Commission, yet the written word is but one-half of the story; one eye on some facts, with a blind one to the rest of the story, so-to-speak.

Here’s what I mean. On Dec. 15 the IEC submitted its report on 11 state economic tax incentives, all reviews of which were performed by an out-of-state firm (PFM) and submitted in November. The report suggested six “retains,” three “reconfigures,” one “allow to sunset” and one “repeal.”

Interestingly enough, the commission voted to accept all recommendations, except they specifically rejected the one “repeal,” thereby telling the Legislature to somehow maintain, in some form, all 11 state economic tax incentives. This may be a tough sell for a Legislature that will be dealing with yet another declining revenue picture and shrinking state budget; early estimates are $500 million less in the coming year.

Yet, our Legislature should take pause at this report, as their actions regarding it will either grow or diminish the state’s vision for years to come. And while I have tremendous respect for the commission members tasked with this difficult analysis, especially considering the short crunch time they had, I have greater concern that our Legislature may rely upon it without their own two-eyed, deeper thinking to get these issues right for Oklahoma.

I work in energy law and I also work in wind energy issues. And from this vantage I know that a full economic analysis of the costs and benefits of any energy tax structure/incentive/treatment must analyze both the local and state impacts. Such is not the case with this firm’s state-focused report to the IEC, and therefore such is not the case with the IEC’s report to the Legislature.

And while PFM admitted it didn’t analyze anything other than calculating costs to the state, some of the crucial failures of their one-eyed approach are:

• The analysis fails to take into account local impacts (schools, counties, cities, landowners), where the majority of the benefits of renewable energy exist.

• The $3.3 billion in appraised value of installed equipment and increased local property tax values and revenue to schools and local governments.

• The $1.2 billion in ad valorem taxes projected to be paid by wind developers between 2003 and 2043, money that wouldn’t exist but for those investments.

• The more than $10 billion invested in Oklahoma since 2003, in landowner payments, local jobs, taxes and investments.

It is right that we analyze annual costs to state government and the budget dilemma, hence costs to all of us, but it is dangerous to our state’s future if legislators act upon one-eyed analysis, especially now when our state family’s budget must plan for a future beyond just this next session. Let’s resolve for 2017 that our Oklahoma vision includes a clear, two-eyed view of the benefits to an energy future that is truly all-the-above as renewables have helped us become.

Jim Roth, a former Oklahoma corporation commissioner, is an attorney with Phillips Murrah P.C. in Oklahoma City, where his practice focuses on clean, green energy for Oklahoma.

Roth: Thanks, OPEC?

By Jim Roth, Director and Chair of the Firm’s Clean Energy Practice Group. This column was originally published in The Journal Record on December 5, 2016.

Jim Roth is a Director and Chair of the firm’s Clean Energy Practice.

Thanks, OPEC?

As an American consumer, more often than not OPEC has truly been a four-letter word, causing price spikes and negative impacts to our broader economy.

But as you fill up your car for holiday travel, at around $1.60 a gallon for gasoline, many Americans can be thankful for the low energy prices fueling their lives. Global oil prices have been under serious downward pressure for the past two years mostly because Saudi Arabia convinced its OPEC brethren to let market forces set the price and production continued to soar.

As an American energy enthusiast, I know that much of the thanks goes to our own domestic producers, the new technologies to discover and recover new reserves and the historic amounts of oil and gas production their ingenuity has made possible, thereby also providing oversupply to the benefit of American consumers.

But as an Oklahoman, I’m hesitant to give thanks to OPEC for much, especially as their two-plus-year campaign of oversupply was probably intended to hurt American producers, many of them right here in our part of the country. And in many ways it worked, as we’ve witnessed massive job losses, business contractions, some bankruptcies and general carnage in the energy services industries.

What is OPEC and why does it matter? Begun in 1960 in Baghdad, the Organization of Petroleum Exporting Countries is a permanent, inter-governmental organization whose founding members include: Iran, Iraq, Kuwait, Saudi Arabia and Venezuela. Nine other member countries have joined over time: Qatar, Indonesia, Libya, United Arab Emirates, Algeria, Nigeria, Ecuador, Angola and Gabon and all other members operate under a Declaratory Statement of Petroleum Policy, which essentially expresses an inalienable right of these countries to exercise sovereignty over their natural resources in the interests of their national development.

These stated rights and purposes led to OPEC’s quick growing prominence as early as 1973 with the Arab oil embargo and its steep rise in oil prices. Since that time global and American economic cycles have been impacted by OPEC’s production and policies, sometimes as a symptom, sometimes the cause.

OPEC completed a deal to cut production (first cut since the recession of late 2008) and adopt other policies that have contributed to a sharp rally in oil prices around the world and here at home. The agreement to reduce their collective output by 1.2 million barrels a day to a new ceiling of 32.5 million barrels was a deeper cut than most observers were expecting.

Saudi Arabia will make the biggest cut at 486,000 barrels, but may actually increase its revenue because of the correspondent rise in prices per barrel. The new wrinkle is that non-OPEC countries, namely Russia, have purportedly also agreed to cut their production as well.

As we Americans also know not to trust Russia without verification, OPEC’s agreement also includes the implementation of a “high-level monitoring committee” to make sure parties abide by the terms of the agreement. They would do well to follow the agreement and enjoy an uptick in commodity prices, thereby earning as much or more revenue while leaving more supply in the ground for their later benefit.

Yet, if oil prices continue to rise, most expect American shale producers to ramp up output in hopes of regaining some lost profits (or at least ending losses), thereby creating a market cap of their own with a corresponding effect on oil prices. So the real question in light of OPEC’s announced production cut is whether American producers will avoid too much production coming back in and causing prices to collapse again.

Yes, I’m a consumer who is thankful to OPEC for the low prices these past years, but I’ll be a more thankful American and Oklahoman with American energy producers back in charge of their own destiny.

Jim Roth, a former Oklahoma corporation commissioner, is an attorney with Phillips Murrah P.C. in Oklahoma City, where his practice focuses on clean, green energy for Oklahoma.

Office Visit: Taming the Reptile lawyer

By Director G. Calvin Sharpe. This guest column was originally published in The Journal Record on November 29, 2016.

G. Calvin Sharpe has 30 years of experience in Oklahoma courtrooms, representing a diverse list of business clients in matters relating to medical malpractice, medical devices, products liability, insurance and commercial litigation.

Office Visit: Taming the Reptile lawyer

The Reptile Theory is a legal trend that has recently gained popularity with the plaintiff’s bar. It is a strategy used to shift jury attention from considering complex trial details typical of a medical malpractice case, to reaction-driven responses that arise from the reptilian portion of the brain. The most primitive cognitive functions, such as breathing, hunger and survival, are generated from this inner portion of the brain, called the basal ganglia or the reptilian complex.

With the common assumption that jurors want to expose and punish the existence of danger, Reptile attorneys seek to establish the defendant doctor or health care provider as careless, indifferent or even malicious in their disregard for safety. The jury’s perception that the defendant endangered the plaintiff will stimulate the survival mechanism deep in their reptile complex. Thus, the jury will act to protect themselves and the community by awarding a substantial verdict in favor of the plaintiff.

As a health care defense litigator in Oklahoma, I have experienced this method firsthand. The Reptile Theory is successfully utilized to secure favorable verdicts and high damage awards. However, just as trends ascend, so do counterstrategies. The Reptile strategy is not the Jedi Mind Trick, and with proper preparation, defense lawyers can derail Reptile attorneys’ efforts before they can derail the jury.

A critical part of defending the Reptile method is to spend adequate time preparing witnesses for deposition, and subsequently, trial cross-examination. During deposition, the Reptile attorney will likely begin the process of establishing a collection of artificial safety rules that exceed the degree of prudence and caution required by law, known as Standard of Care.

For example, a deposed physician may be asked, “Is the ultimate safety of a patient the most important consideration in medical care?” An unprepared defendant would naturally want to say, “yes, of course.” However, this can be used during trial to characterize the physician as careless and unsafe when artificial safety rules established in deposition are contradicted, even if they exceed the legal standard of care required for a physician or health care provider.

Understanding of Reptile Theory within the legal community is still evolving. Defense lawyers are well-advised to educate themselves, their clients and the judge prior to squaring off against a Reptile lawyer.

G. Calvin Sharpe is a trial lawyer at Phillips Murrah law firm in Oklahoma City.

Roth: Solar and its erosion of socialism

By Jim Roth, Director and Chair of the Firm’s Clean Energy Practice Group. This column was originally published in The Journal Record on November 28, 2016.

Jim Roth is a Director and Chair of the firm’s Clean Energy Practice.

Solar and its erosion of socialism

Since long before the Affordable Care Act, Vermont Sen. Bernie Sanders and Social Security, Americans have relied upon socialism to safeguard their lives, provide vital services like water, electricity and infrastructure and to connect one another in a seemingly unbreakable co-dependence. The term and concept of socialism can be a politically charged (often negative) term in today’s culture, but the reality is it’s been the American way of life, in many ways, for many years.

But the greatest threat, or opportunity depending on your point of view, to disrupt some aspects of socialized American life is not whether Speaker Paul Ryan’s past efforts to privatize portions of Social Security have a new life or whether the incoming president will repeal “Obamacare,” it’s whether fast-paced solar energy technologies may give Americans the chance to “live free” so-to-speak, or at least more free in the energy future.

About five years ago, to a national energy audience, I once heard the late Aubrey McClendon state “we have more energy hitting the surface of the Earth every day from the sun than this planet may ever need, we simply don’t know yet how to harness and use it.”

He of course was right and the last five years have seen incredible growth in human ability to harness and use solar energy. And it’s about to disrupt some socialized ways of life, for the better.

Imagine if you will, you drive to and from work in your solar-powered car, park in your home’s garage with solar-technology shingles repowering it and your home, with the help of battery technology that has captured the sun for 24/7 benefit and value to your family. And what are the effects to our socialized systems? Well, the jury is still out on this question but it’s fair to believe that change is coming and that’s a good thing. Yet some of the change won’t be easy as it will involve recalculating and perhaps redesigning cost structures for things like the socialized electric grid and America’s road systems.

Imagine two case studies:

  • More Americans can rely upon a solar-powered home and live free of the local utility. If that trend moves quicker than utilities can divest from older, expensive debt like coal plants and built-out transmission and distribution grids, will the non-solar customers need to pay more for their older forms of socialized electricity? And if that’s the case, then the cost-competitiveness of stand-alone solar energy, compared to escalating utility costs, creates price signals that will motivate even more customers to switch to their own solar systems and hasten the cost increase in the incumbent utility rates.
  • As more Americans drive electric-powered cars right past gas stations without the need to fuel up, what happens to the funding of local roads and bridges that rely upon gas and diesel fuel tax collections to pay, in part, for the roadway system?

More cars may be relying upon their own energy generation, while roads receive less funding as less gasoline and diesel is consumed. And although Americans also pay for roads through public bonds, property taxes and general revenue, some may worry about the reduction of gas taxes into that funding pie.

Early “societal cost analyses” actually suggest that electric-powered cars are cheaper to society, on an all-in basis, because of reduced costs to health and environment compared to combustion engines. But the trend will undoubtedly impact socialized road funding as we know it today and will be something future public policy will need to adjust toward.

It’s rich irony to realize that the sun, something all humans on Earth have access to in common, may be the new way that we all live more separate and independent lives from each other.

Jim Roth, a former Oklahoma corporation commissioner, is an attorney with Phillips Murrah P.C. in Oklahoma City, where his practice focuses on clean, green energy for Oklahoma.

Roth: Too early to know for sure

By Jim Roth, Director and Chair of the Firm’s Clean Energy Practice Group. This column was originally published in The Journal Record on November 21, 2016.

Jim Roth is a Director and Chair of the firm’s Clean Energy Practice.

Too early to know for sure

With the new president not yet taking office until Jan. 20, it is surely too early to know for sure what changes are in store for America’s energy and environment policies. But certain things are known with relative certainty: The philosophies of the outgoing and incoming administrations are certainly much different from one another. But what is unknown is how much will the effects of each be different and in what ways.

For eight years the Obama Administration has prioritized government action in the areas of energy and environmental policy. In fact, according to the White House’s website: “The President has taken unprecedented action to build the foundation for a clean energy economy, tackle the issue of climate change, and protect our environment.”

It is this action, especially the executive actions without congressional approval that has offended many republicans and has drawn the ire of the president-elect.

Since 2008, domestic energy related emissions have fallen to their lowest level in 20 years, due in large part to the massive boom in domestic natural gas production, which has helped to economically move dirtier coal out of the market in electricity and industrial output. Also, America has seen rapid growth in renewable energy development and Americans have more clean energy options today than any other time in history. Those technological progresses, coupled with many Clean Air Act policies and other regulatory pressures, have America headed toward a lower carbon future, where energy security is becoming a national security reality because of domestic production.

It seems obvious that the president-elect will make good on his campaign promise to “roll-back” regulations, but what is less obvious is: How far, which regulations and to what effect?

Obama’s Clean Power Plan, which Trump has vowed to kill, will be an early target along with several environmental and energy rules under litigation including the EPA’s controversial Waters of the US Rule, which has concerned many farm states, the Department of the Interior’s fracking rule and issues around public lands leasing for drilling. But again, at what practical impact is still anyone’s guess.

For example, even if Trump tries to re-open many coal mines in Appalachia, where the product is much dirtier than Wyoming’s Powder River Basin, where is the market for that product? Few utilities are still burning coal, many are under court-ordered retirement schedules and the enormous supply of cleaner-burning natural gas will continue to undercut the price of coal.

Also, and sometimes at the same pro-coal rallies, candidate Trump made promises about greater drilling for oil and natural gas that will only further over-supply the gas picture and make coal less competitive. So it’s a bit of a stretch to think that local utilities are going to ask their regulators for permission to raise the price of electricity so they can burn more coal and create more pollution. Market forces are at play here.

And political forces are at play in other ways that leave coal a diminished future, in spite of campaign promises from the president-elect. He would still have to convince the Republican Congress to join him in reversing America’s course toward a cleaner energy future.

Take wind for example. Republican Sen. Chuck Grassley, from Iowa, the original author of the wind energy production tax credit, warned candidate Trump in August “If he wants to do away with it, he’ll have to get a bill through Congress, and he’ll do it over my dead body.”

For environmentalists, there is certainly reason for worry as their priorities will be under attack from day one. Particular concern is justified when you consider that a climate-denier and skeptic named Myron Ebell is a possible nominee to be the head of the Environmental Protection Agency. But for those on the other side, their optimism may need to wait and see what actually happens legislatively and market-wise. Business can most assuredly expect relaxed regulations on energy consumption, industrial processes and their environmental footprint.

But the idea that all of America’s recent movements in energy and the environment are going to be reversed may prove to be more like the pre-election “big, beautiful wall to be paid for by Mexico” giving way to the post-election admission that it’s probably more likely a “fence in some places” if he can get Congress to pay for it with your money. Stay tuned.

Jim Roth, a former Oklahoma corporation commissioner, is an attorney with Phillips Murrah P.C. in Oklahoma City, where his practice focuses on clean, green energy for Oklahoma.

Roth: Is there a price for nationalism?

By Jim Roth, Director and Chair of the Firm’s Clean Energy Practice Group. This column was originally published in The Journal Record on November 7, 2016.

Jim Roth is a Director and Chair of the firm’s Clean Energy Practice.

Is there a price for nationalism?

This year we have seen perhaps the best of nationalism and perhaps the worst of it. From the 2016 Olympic Games and the American pride and patriotic togetherness they created, to the political rhetoric at play in this year’s presidential election calling for an America First approach to government policy, Americans are being asked to rally to an us-versus-them mentality.

But at what cost? And who is the “us” and who is the “them”?

Nationalism has been defined as: a shared group feeling in the significance of a geographical and sometimes demographic region seeking independence for its culture or ethnicity that holds that group together.

The problem seems to be, unlike cheering for the many diverse faces (culturally, religiously, racially) of these many talented American athletes, as they wear the same red, white and blue, nationalism in the political sphere seems to be more about division than prideful multiplication.

The danger of nationalism in America, the world’s most diverse country ever, is that the underlying nationalistic belief that citizenship should be limited to one religion (Christianity via Muslim ban) or one race (Caucasian via immigrants or “Mexican rapists”) is that it has most always led to the weakening of American interests at home and abroad.

For example, the America First approach to foreign policy, begun in the late 1930s, which encouraged inaction in world conflicts generally, and the appeasement of Adolf Hitler specifically, swept the country, allowing Hitler to sweep across much of Europe. Once America joined the war effort, the severity of the lives lost was much more than it would have been if America and allies had engaged sooner, with over 60 million people killed, including 419,400 dead Americans. It became the deadliest military conflict in world history and included horrific crimes against humanity and war-related famine taking the lives of millions more civilians. Most scholars would suggest that nationalism at home led to worse ultimate results at American expense.

And in economic terms, the idea of nationalism can also cause unintended negative consequences leading to economic isolation and decline. As one or more candidates for high office brag about ripping up trade deals, bringing back jobs and rigged economics, these slogans ignore the American reality that our economy has benefited from a global market. Yes, we often import more goods and services than we would like, but we also export a huge amount of American products to the world, often worth much more than the cheaper items we import.

Yes, these are complicated issues and yes it’s right to do more to strengthen our economy at home, but we must require more from our presidents than empty rhetoric, based in fear and misplaced cries of nationalism. Instead, America has always done better when we claim our place in the world, not shy away from it or withdraw; when we stand strong as a beacon of inclusive hope, freedom and liberty for a diverse culture, which in turn attracts the best of the world to America’s golden door.

“Give me your tired, your poor,

Your huddled masses yearning to breathe free,

The wretched refuse of your teeming shore.

Send these, the homeless, tempest-tossed to me,

I lift my lamp beside the golden door!”

Please vote. And please vote for the kind of America, where its diverse people fight for a proud country and earn the gold medal on the world stage, not the type of America where divisive nationalism shrinks our future and removes us further from that more perfect union.

Jim Roth, a former Oklahoma corporation commissioner, is an attorney with Phillips Murrah P.C. in Oklahoma City, where his practice focuses on clean, green energy for Oklahoma.

Roth: Clean water, local control and Oklahomans united against SQ 777

By Jim Roth, Director and Chair of the Firm’s Clean Energy Practice Group. This column was originally published in The Journal Record on October 31, 2016.

Jim Roth is a Director and Chair of the firm’s Clean Energy Practice.

Clean water, local control and Oklahomans united against SQ 777

There is no question that this year’s political cycle has been a particularly divisive one. On the national level, the rhetoric is ramped up to unprecedented levels, and there’s a clear divide in our country that may take generations to heal.

Republicans and Democrats can’t even agree with other Republicans and other Democrats; forget trying to find common ground across the aisle – unless you look at one of the state questions on the ballot in Oklahoma. Seemingly out of nowhere, a diverse coalition has emerged, and Republicans and Democrats alike are united in their opposition to State Question 777.

As you may know by now, SQ 777 is a proposed constitutional amendment that will make it virtually impossible for our Legislature, municipalities and administrative agencies to implement reasonable regulations on any aspect of the agricultural industry. No industry in Oklahoma currently enjoys this type of constitutional protection. And in my opinion, none should.

SQ 777’s proponents rail against government overreach and claim it will protect farms from burdensome overregulation, but Oklahomans aren’t buying it.

In fact, by preventing our local officials from having a say in future agriculture policy, SQ 777 will invite increased attention and intervention from federal regulators like the Environmental Protection Agency and the U.S. Department of Agriculture. In other words, if Oklahoma so severely restricts its ability to self-govern, the only authority left to fill the void will come from Washington, D.C. And we Oklahomans know better that the best form of government is that which is closest to the people, here at home.

Those opposing SQ 777 cite a wide range of concerns: protection of our water; making sure our laws banning cockfighting and puppy mills stay on the books; and safeguarding family farms from the havoc wreaked by corporate, foreign-owned farming operations all factor in to this unlikely band of naysayers.

And this band of naysayers is diverse and growing.

Those opposed to SQ 777 include Oklahoma City Mayor Mick Cornett (R), Cherokee Nation Chief Bill John Baker, Coach Barry Switzer, Gov. Brad Henry (D) and Gov. David Walters (D), just to name a few. Organizations against SQ 777 include the Intertribal Council of the Five Civilized Tribes, League of Women Voters and Save the Illinois River.

The Cherokee County Republican Women and the Cherokee County Federation of Democratic Women have even signed a joint resolution in opposition to the proposed amendment. Now that ought to tell us all something when leaders in both parties come together to protect our Oklahoma rights.

Municipalities of all sizes from Broken Bow to Oklahoma City have voiced their concerns as have the Oklahoma Municipal League and the Association of Central Oklahoma Governments. Newspapers across the state are also urging voters to reject the proposal.

While their reasons may differ, opponents of SQ 777 are united at a time when vitriol and discord have become the norm.

I hope on Election Day the ballots will show what recent polling shows on SQ 777, Oklahomans are in agreement. We must vote no on this dangerous, unnecessary proposal.

Jim Roth, a former Oklahoma corporation commissioner, is an attorney with Phillips Murrah P.C. in Oklahoma City, where his practice focuses on clean, green energy for Oklahoma.

The tax audits are coming!

Gavel to Gavel appears in The Journal Record. This column was originally published in The Journal Record on Oct. 27, 2016.

Chase H. Schnebel is a member of the Tax and Private Wealth Practice Group and assists clients in a variety of tax, business, and asset management issues.

By Phillips Murrah Attorney Chase H. Schnebel

The state of Oklahoma has ramped up efforts to collect tax revenue from those that may not be paying their fair share. Senate Bill 1579, signed into law in May, directs the Oklahoma Tax Commission “to enhance agency efforts to discover and reduce fraud and abuse of sales and use tax exemptions provided pursuant to the Sales and Use Tax Codes and the nonfiling and underreporting of sales and use taxes due and owing.”

The fiscal impact statement for SB 1579 has an estimated cost of approximately $4 million, but estimates increased revenues in excess of $50 million, with $26 million from increased sales tax collections. The law also directs the OTC to increase its audit staff to detect “through the use of enhanced technology” those who may owe the state money. With an estimated addition of 50 auditors, there is no doubt that the number of audits will increase.

An audit will typically start with the OTC requesting access to substantial business records. During the process, a taxpayer can expect to receive ongoing requests for documentation and explanations. The audit process involves close scrutiny of accounting records, tax returns, transactional documents, banking records and other relevant business records. If the audit results in a determination that the taxpayer owes tax, the OTC will issue a proposed assessment that may also include penalty and interest assessments.

A tax audit can be an invasive process and, upon receipt of an audit notification, individuals and businesses often feel vulnerable. A strategic approach to organizing and producing business records can substantially reduce exposure to assessments and the amount of time and resources necessary to complete the audit. Experienced tax professionals have knowledge of OTC audit procedures, statutes and regulations, which can be helpful in closing the audit process. If the OTC issues a proposed assessment, there are administrative procedures available that allow taxpayers to protest the assessment, request a waiver of penalty and interest assessments, and request an installment agreement to ensure a one-time assessment does not result in closure of the business.

The prospect of a state tax audit can be frightening and the process can be disruptive. To achieve the most desired possible outcome, it is important to involve tax professionals at the very beginning of the audit.

Chase H. Schnebel is an attorney at Phillips Murrah PC who specializes in tax issues.

Roth: A ‘rigged’ election?

By Jim Roth, Director and Chair of the Firm’s Clean Energy Practice Group. This column was originally published in The Journal Record on October 24, 2016.

Jim Roth is a Director and Chair of the firm’s Clean Energy Practice.

A ‘rigged’ election?

I know, I know, we are all growing tired of the 24/7 news around our election for a new U.S. president and in just two weeks it should all be over.

But the headline of this column is not about one candidate’s unprecedented forecast of possible election fraud as a cause of his likely defeat. No, this headline is about the other kind of “rigging” that has more often been a subject of debate in American presidential politics.

For the first time in my life, the presidential election year debate around America’s possible role in the turmoil of the Middle East has nothing to do with the economic implications to our need for Middle Eastern oil and gas. Instead, because of the success and unprecedented production of America’s domestic resources over the past years, Americans are now debating the role of America in Syria, Yemen and Iraq on purely humanitarian and global security grounds.

Gone are the spoken or unspoken rationales for early military intervention in places like Kuwait, where we pushed back the aggression of Saddam Hussein, who had overtaken that country’s constitutional monarchy for control of its rick oil fields and its strategic place along the Arabian tip of the Persian Gulf. Gone too is the notion that we should bring democracy to places like Iraq, or topple dictators like Hussein, begun in 2003 under the guise of expanding freedoms and revenging supposed involvement during the 9/11 attacks.

To illustrate how far we’ve moved as a country, both candidates for president of our two major political parties now disavow their earlier support for the invasion of Iraq just 13 years on. And I’m not trying to conflate the idea of 9/11 revenge or Hussein tyranny as justifications. My point is that for decades America’s activism in the Middle East, whether through military intervention, military sales or regime change, has been rooted in what it meant to our country’s economic interest. Intervention often helped stabilize global markets and our energy-dependent economy at home.

But thanks to the ingenuity, technological advances and drive of America’s oil and gas producers over the past decade, our country now stands on its own production better than ever. Our ability to identify, drill and produce new reserves in massive quantities has allowed America to achieve much-improved national security through the drill bit.

The U.S. shale revolution is the most significant global energy development in a quarter century or more. Our oil and gas commodity markets and the broader economy are no longer impacted my Middle East unrest half a world away, or even the hurricane seasons in our own hemisphere.

With a horrific humanitarian toll growing as Syria rages, with Saudi Arabia in a military fight in Yemen and with Iraqi forces on the march in Mosul, America Oil remains steady at just above $50 a barrel for West Texas Intermediate. The global benchmark price is also relatively stable at just above $51 a barrel for Brent Crude.

The American rig count is at 553 active rigs, up 42 rigs from a month earlier, yet it is down 234 rigs from this time last year. And oil prices are still steady.

American energy security is being met more by Americans than ever before and it’s making for a new evolution in American politics. So the new question for the next president, and really all of us American citizens, on the modern challenges of the Middle East is becoming: What’s our role in the region now that the growing need is more humanitarian interests than economic?

Jim Roth, a former Oklahoma corporation commissioner, is an attorney with Phillips Murrah P.C. in Oklahoma City, where his practice focuses on clean, green energy for Oklahoma.

Roth: FedEx, CNG and leadership

By Jim Roth, Director and Chair of the Firm’s Clean Energy Practice Group. This column was originally published in The Journal Record on October 17, 2016.

Jim Roth is a Director and Chair of the firm’s Clean Energy Practice.

FedEx, CNG and leadership

Leadership matters. And FedEx is the perfect example.

In fact, read this quote from its founder, Fred Smith, and I think you will agree: “Leadership is not about titles, positions, or glory. The best kind of leadership is about setting the example, influence, integrity, inspiration and courage.”

FedEx, originally known as Federal Express, was the first overnight express delivery company in the world, is the largest in the United States and the largest in the world. So when a company like this moves in a principled direction, its competitors and others should take note.

This is certainly true with FedEx Freight’s movement toward compressed natural gas fleets and the recent celebration in converting its service center in Oklahoma City to run on CNG. They have purchased more than 100 new CNG trucks, making Oklahoma City their first market committing to this fuel. The facility and its fueling stations is a partnership with Clean-Energy Fuels and features multiple fast-fuel stations at its expanded service center. Faster and cleaner is a great commitment to FedEx’s future.

According to FedEx’s corporate position on environmental sustainability, it is “committed to providing global connections while minimizing our environmental impact. We have integrated responsible environmental practices into its daily operations, and continuously work toward goals that challenge us to increase efficiencies and reduce waste and emissions.”

And it shows. By 2012 FedEx had achieved a 22-percent improvement to its fleet’s fuel efficiency over 2005 levels and had increased its goal now to a 30-percent improvement by 2020. It has also set ambitious goals to reduce aircraft emissions 30 percent by 2020 and it’s committed to getting 30 percent of its jet fuel from alternative fuels by 2030 also.

The progress being made towards these company goals is evident in its Oklahoma progress with its CNG expansions. Let’s compare fuels.

According to the U.S. Department of Energy’s Alternative Fuels Data Center, when used as a vehicle fuel, natural gas can offer life-cycle greenhouse gas emissions benefits over conventional fuels, depending on vehicle type, drive cycle and engine calibrations. And in some instances natural gas can also reduce some types of tailpipe emissions.

Modeling done by the esteemed Argonne National Laboratory estimates that vehicles running on compressed natural gas and liquefied natural gas emit approximately 6 percent to 11 percent lower levels of GHGs than gasoline throughout the fuel life cycle.

The two types of natural gas, CNG and LNG, are nearly identical, with CNG actually emitting slightly less GHGs than LNG because compressing natural gas requires less energy than liquefying it. Both are clean-burning fuels and help companies like FedEx beat current vehicle emission standards.

They truly are on the road to a cleaner future, leading the way by example and actually ahead of the curve from all others.

Jim Roth, a former Oklahoma corporation commissioner, is an attorney with Phillips Murrah P.C. in Oklahoma City, where his practice focuses on clean, green energy for Oklahoma.

Roth: Our own efforts to reduce carbon

By Jim Roth, Director and Chair of the Firm’s Clean Energy Practice Group. This column was originally published in The Journal Record on October 10, 2016.

Jim Roth is a Director and Chair of the firm’s Clean Energy Practice.

Our own efforts to reduce carbon

Last week we discussed the historic nature of recent carbon levels and the Earth’s atmosphere. Scientists at the National Oceanic and Atmospheric Administration measured late September levels to remain in excess of 400 ppm (parts per million) at their monitoring station in Mauna Loa, Hawaii.  The lowest carbon levels of an entire year typically occur in the later part of September, yet this September carbon dioxide levels remaining above 400 ppm for the first time in recorded history.

The surge in carbon dioxide levels has occurred in large part because manmade emissions have increased 25 percent in the last 20 years, as more and more industrialization occurs across the globe. And according to researchers around the world, the historic increase over 400 ppm for an entire year may not change the ultimate fundamentals around climate change, but it has certainly represented a hastening of the coming dangers.

The United Nations’ Intergovernmental Panel on Climate Change says that carbon dioxide concentrations need to be stabilized at 450 ppm if we are to have a decent chance of avoiding the 2 degree Celsius increase in global warming. And as we have now known for years, the 2C increase projection is expected to carry catastrophic consequences.

At this point in time, to avoid the 2C increase in global temperature, would require a 40 percent to 70 percent emissions cut compared to 2010 levels and zero, yes zero, emissions by the end of this current century in 84 years. There are some signs of progress and hope but much remains to be done.

For example, the large global boost in renewable energies, having replaced dirtier emitting power plants (like coal and other resources), have at least slowed the growth in global emissions. Our own state is now ranked fourth in America in terms of installed wind capacity and is on track to become third by the end of 2016, surpassing the larger state of California.

So what can we do in our own lives to help make a difference?

There are a number of great online resources, with many great ideas for how you can customize efforts in your own life, such as:

  • – whose Motto is: Reduce what you can, Offset what you can’t.
  • – which stands for Carbon Offsets to Alleviate Poverty.
  • – which offers ideas for drastically reducing America’s carbon emissions and grow the economy.

These sites and many others suggest solid ideas for simple things in each of our own lives, such as shortening our work commute by car-pooling, moving closer to work and working longer days but fewer of them.

And most scientists and observers suggest that Americans could make the most immediate and dramatic reduction to our own carbon footprint by simply changing some food and eating habits. It’s true that we as a people often buy more food than we eat, causing massive amounts of agricultural production that is unnecessary. We also consume large amounts of meats and milk, which cause animal farming to create excessive amounts of methane and other gases.

According to research, the average American is consuming 83 grams of animal-based protein a day, well above the daily-recommended amount of 51 grams. So it appears that some things we can do to benefit our own planet, might actually start with more immediate benefits to our own bodies and lives.

Please consider ways to help Mother Earth too.

Jim Roth, a former Oklahoma corporation commissioner, is an attorney with Phillips Murrah P.C. in Oklahoma City, where his practice focuses on clean, green energy for Oklahoma.

Roth: 400 ppm tipping point?

By Jim Roth, Director and Chair of the Firm’s Clean Energy Practice Group. This column was originally published in The Journal Record on October 3, 2016.

Jim Roth is a Director and Chair of the firm’s Clean Energy Practice.

400 ppm tipping point?

Safe carbon levels in Earth’s atmosphere are now a thing of the past, as many scientists conclude we may have just passed the tipping point for our planet’s climate, based upon readings from this week’s carbon levels.

The lowest carbon levels of an entire year typically occur in the later part of September, yet September 2016 just saw another historic event in climate science with carbon dioxide levels remaining above 400 ppm (parts per million) for the first time in recorded history. In fact, scientists are able to conclude that it’s the first time in over 3 million years, considering that the Earth just surpassed the 400 ppm level in 2013. Now we’ve missed our annual minimum from even dipping below that level, just three years on.

The National Oceanic and Atmospheric Administration first measured the 400 ppm threshold from its monitoring station in Hawaii in 2013, causing worry around the world from scientists and environmentalists who have long held that level as the threshold to avoid irreversible changes to climate, weather, sea levels and ice cover. The same NOAA station at Mauna Loa Observatory just recorded that “Carbon dioxide just hits its annual minimum …and failed to dip below 400 ppm” on Wednesday.

For years many scientists have suggested that 350 ppm is the upper limit of safe CO2 levels in the atmosphere, with 400 ppm considered the line not to cross, yet this week’s reality suggests that we are continuing to add 2 ppm of CO2 to the atmosphere every year, with no real change in sight.

And to be clear, it’s not all the fault of fossil fuels, although the broader industrialization of planet Earth’s more populous countries over the last two centuries has been proven to accelerate us all to the current reality. Other causes, including those that have perhaps forced September to not dip backwards to its annual minimum, come from other sectors of the world’s economies (agriculture, deforestation, etc.) and other naturally occurring realities, evident this September.

Why September?

The month of September is usually the month with the lowest levels of carbon in the atmosphere because the effect of massive summer plants growing and absorbing the CO2 in the Northern Hemisphere in particular. And as the calendar moves on, those plants and trees lose their leaves, decompose and again release the carbon into the atmosphere. And with the greater industrialization of the planet, humans have been adding more and more carbon dioxide than Earth’s remaining plants can absorb. Thus, when the natural seasonal effects happen the absorbed carbon is released into a world that already has carbon levels too high.

To see an amazing visualization of the growing carbon levels, please check out NASA’s Global Modeling and Assimilation Office at

Next week I’ll share a few ideas for things we can do in our own lives to help slow the harm we are all witnessing.

Jim Roth, a former Oklahoma corporation commissioner, is an attorney with Phillips Murrah P.C. in Oklahoma City, where his practice focuses on clean, green energy for Oklahoma.

Roth: Time to garden?

By Jim Roth, Director and Chair of the Firm’s Clean Energy Practice Group. This column was originally published in The Journal Record on September 26, 2016.

Jim Roth is a Director and Chair of the firm’s Clean Energy Practice.

Jim Roth is a Director and Chair of the firm’s Clean Energy Practice.

Time to garden?

Now that the autumnal equinox has begun and the heat of summer is subsiding, it might surprise you to know this is an excellent time to plant a garden.

Gardening is truly a year-round activity and in Oklahoma some of the best vegetables are grown and harvested in the fall. As more and more Americans grow interested in the source, quality and integrity of their food, more and more Americans are growing their own. And the unique mixture of Oklahoma’s warm autumn days followed by cool, humid nights creates great climate conditions for high-quality vegetables.

Oklahomans can confidently sow carrots, beans, cucumbers, summer squash, beets, Irish potatoes, lettuce, mustard, radishes, rutabagas, spinach, Swiss chard and turnips, according to the Master Gardener programs at the Oklahoma State University Extension Services across our state. To learn more specifics, please check out


You will want to contemplate a few things on the timing of your plantings for different types of vegetables. Your planting should be timed to allow frost-sensitive plants (like beans, squash and cucumbers) to mature before Oklahoma’s frost begins, which as we Oklahomans know is often hard to predict. And for those vegetables that have more tolerance for frost, (like beets, broccoli, Brussels sprouts, cabbage, Chinese cabbage, carrots, cauliflower, collards, Irish potatoes, leaf lettuce, radishes, rutabaga, Swiss chard and turnips) they can be grown and harvested even during times of mild fall frosts later in the season. And if you are late to plant this fall, your best bet is probably mustard and spinach.

You may also opt for transplanting starter plants for your fall garden, rather than using seeds, as germinating seeds will obviously take longer to grow and produce and also pose more risk regarding water levels as their small root systems require daily attention.

Desirable soil conditions for fall

If you’ve just come off a spring or summer garden it is recommended that you clean up existing plants and mulch the soil to pre-cool it. After about a week, remove the mulch and analyze the soil to determine what if anything else may help to prepare it. Modifying or improving the soil with fertilizers, adding organic materials and improving aeration and drainage go a long way to creating the desirable soil for your garden. Additional fertilizers may be beneficial to stimulate growth and production. These might be incorporated in the soil prior to planting your garden or applied on the soil surface later.

And since fall seeds are planted shallower than warmer-weather gardens, sufficient water is critical to their growth and production.

Soils that produced a spring or summer vegetable crop will be more easily managed and readied than those made from scratch from established grasses and yards. If you are starting a fall garden from scratch, please do consult the OSU Extension advice and suggestions for soil preparation, soil quality and planting methods to obtain a garden of plenty for your upcoming holidays and family meals.

Bringing a homegrown food dish to share with family and friends is a very thoughtful way to share the bounty. And because fall vegetables are often more dense and productive than those that survive our summer season, you may end up with extra vegetables to can and preserve for those cold winter months that will be here sooner than we might like to admit.

Jim Roth, a former Oklahoma corporation commissioner, is an attorney with Phillips Murrah P.C. in Oklahoma City, where his practice focuses on clean, green energy for Oklahoma.

Valuation discounts under threat

Gavel to Gavel appears in The Journal Record. This column was originally published in The Journal Record on Sept. 14, 2015.

Robert O. O’Bannon is a Director who represents business clients in a variety of transactional matters with an emphasis on taxation and wealth planning issues for both businesses and individuals.

Robert O. O’Bannon is a Director who represents business clients in a variety of transactional matters with an emphasis on taxation and wealth planning issues for both businesses and individuals.

By Phillips Murrah Director Robert O. O’Bannon

The current economic downturn in the oil and gas industry, combined with the low-interest-rate environment and the availability of valuation discounting techniques, creates a number of unique opportunities for tax planning, which include gifting or sale of equity interests in a family business to children or trusts created for their benefit.

However, recently proposed regulations by the U.S. Department of the Treasury to Section 2704 seek to eliminate most forms of valuation discounting for intra-family transfers of businesses. The proposed rules will likely take effect in 2017. Fortunately, the new rules would apply only to transfers that occur after the effective date.

The following are some proposed rules that would affect valuation discounts.

3-year lookback
Proposed Treasury rules would restrict changes in ownership intended to trigger a minority ownership discount, which occurs when a fractional ownership interest is worth less than its proportional share of the enterprise business. New rules would impose a three-year lookback to determine whether a minority valuation discount should apply, which is intended to limit “deathbed transfers” used to create a minority interest.

Restrictions required by law
If state law restricts the ability of a family-owned entity to liquidate, but allows partnership agreements to override the restriction, it will not be considered as “required to be imposed” and cannot be used to reduce the value of an interest for transfer tax purposes. Additionally, if state law restrictions cannot be removed by the family-controlled entity, but state law restrictions are specific to family-controlled entities, it will also be ignored.

Disregarded restrictions
Proposed regulations will create a new classification of restriction that is to be ignored in valuing interest in a family-controlled entity. Valuation discounts will be disregarded that include provisions that restrict the right of each interest holder in a family-controlled entity, whether a family member or not, to liquidate or redeem the interest in cash or other property payable within six months of liquidation or redemption.

These proposed rules are complex, and high-net-worth families who wish to seek valuation discounts may want to consider quick action in light of impending changes to tax law.

Robert O. O’Bannon is a director at Phillips Murrah law firm who represents clients in a variety of matters with an emphasis on taxation and wealth transfer planning issues for businesses and individuals.

Roth: Sunny opportunity for Oklahoma schools?

By Jim Roth, Director and Chair of the Firm’s Clean Energy Practice Group. This column was originally published in The Journal Record on September 12, 2016.

Jim Roth is a Director and Chair of the firm’s Clean Energy Practice.

Jim Roth is a Director and Chair of the firm’s Clean Energy Practice.

Sunny opportunity for Oklahoma schools?

According to the Oklahoma Policy Institute and other reputable observers, “Oklahoma had the dubious honor of having made the deepest cuts to school funding in the nation since the start of the recession in 2008. Now an update from the Center on Budget and Policy Priorities shows that our lead has widened. Adjusted for inflation, Oklahoma’s per student school formula funding has dropped 23.6 percent over the past six years, significantly more than in any other state.”

And that observation was in late 2014. As of 2016, on average Oklahoma continues to spend at the rate that maintains our ranking as 48th among the 50 states and the District of Columbia.

And as we know today our state’s budget dilemmas have only worsened in 2015 and 2016, with historic funding cuts further affecting investments in our public schools, our teachers and ultimately our young citizen students.

But rather than focusing on the budget appropriation side of schools’ economics, I want to share an idea with our state leaders that might actually be a win-win for schools by creating real budget relief in the form of lowering their costs of operations and creating an income opportunity.

Here’s how: Oklahoma’s 1,784 public school buildings spend a great deal of money to provide electricity for heating and cooling throughout the school year, and this growing expense in each school’s annual budget is often regarded as a mandatory expense without options. But that’s not true; Oklahoma does have options.

Imagine the installation of solar panels on top of many of these more than 1,000 school buildings all across the state, generating more electricity than the school itself needs and exporting that excess power to the grid, every month of the year and actually creating more income back to the school than the solar systems cost. Yes, income. How’s that for running government like a business?

It’s happening all across America already, as solar energy is booming in America, with installations in 2016 expected to double the amount from record-breaking 2015 and a trend line toward 20 gigawatts annually by 2020. The cost to install solar has dropped by more than 70 percent over the last 10 years, leading the industry to expand into new markets and deploy thousands of systems nationwide, including with many business and schools.

According to a recent report by the Solar Foundation and the Solar Energy Industries Association, there are nearly 4,000 K-12 schools in the United States with active solar systems, meaning more than 2.7 million American students attend solar schools. The report also found that thousands of other schools could save money by going solar. The large, flat rooftops typically found on public and private K-12 school buildings throughout Oklahoma make these buildings ideal for rooftop solar photovoltaic or solar thermal systems.

Parking lots and solar canopies are another obvious opportunity for Oklahoma schools to generate power, even more than their own buildings require, and the beauty of solar power is that the systems are generating energy at the most expensive time of the day. If you want to teach students something smart and observable every day outside of a textbook or a web page, schools can instruct students by doing something so obvious and observable to them every day.

Oklahoma is home to only one current solar installation at a public school, in the Tulsa area, yet there is enormous potential for school districts of all sizes all across the state. Our Legislature and our governor will need to agree with this idea and make slight changes to Oklahoma law to unlock this opportunity for our many cash-strapped public schools.

The utilities may fight it, as they’ve shown an intention so far to work against citizens who want to install and afford solar, but the Oklahoma taxpayer will love it. And after all, public officials take an oath to serve the citizens and this sunny opportunity is a great way to bring funding relief to our schools.

Jim Roth, a former Oklahoma corporation commissioner, is an attorney with Phillips Murrah P.C. in Oklahoma City, where his practice focuses on clean, green energy for Oklahoma.

Roth: Happy birthday for all of us Americans

By Jim Roth, Director and Chair of the Firm’s Clean Energy Practice Group. This column was originally published in The Journal Record on August 29, 2016.

Jim Roth is a Director and Chair of the firm’s Clean Energy Practice.

Jim Roth is a Director and Chair of the firm’s Clean Energy Practice.

Happy birthday for all of us Americans

If this heading makes you think you’ve picked up a copy of The Journal Record’s July 4th issue, I apologize for the confusion. We are always right to joyously celebrate our country’s Independence Day and the importance of the somewhat intangible principles of freedom and liberty that bind our amazing republic, but I am wishing you all a very happy birthday for something more tangible: the land, rivers, valleys and mountains that make up our National Park Service, which turned 100 on Aug. 26.

Happy birthday indeed. The first hundred years have not been easy, including the start in 1916 when Congress passed the National Park Service Organic Act, creating a new agency with the U.S. Department of the Interior. The NPS is charged with the roles of preserving the ecological and historical integrity of places while also making them available for public use and enjoyment.

According to their mission: “The National Park Service preserves unimpaired the natural and cultural resources and values of the National Park System for the enjoyment, education, and inspiration of this and future generations. The Park Service cooperates with partners to extend the benefits of natural and cultural resource conservation and outdoor recreation throughout this country and the world.”

With more than 275 million visitors a year, our national parks create unique opportunities for busy American families, who now more than ever dwell in urban settings, to connect with nature and to develop an appreciation for the boundless, living world around our beautiful America.

Even before the National Park Service was officially begun, patriotic tributes to our land existed in many forms, such as America the Beautiful, whose words were first written as a poem in 1895, then soon combined with a choirmaster’s music and published in their first form in 1910. The lyrics we know today are as important to honor our American experience as perhaps our national anthem:

O beautiful for spacious skies,

For amber waves of grain,

For purple mountain majesties

Above the fruited plain!

America! America!

God shed His grace on thee

And crown thy good with brotherhood

From sea to shining sea!

We should honor and defend these treasures in every way, as a unique enrichment to the American experience.

And just this past week, the designation of the 87,500-acre Katahdin Woods and Waters National Monument along the Maine Coast and the Penobscot River, creating the 413th national park site, home to lynx, bears, moose, brook trout and rare birds such as the American three-toed woodpecker, provides yet another chance for all Americans to visit the land from sea to shining sea.

When I was a teenager, my dad began offering me life and financial advice from his own observations. And although I wish I would have taken better to heart concepts like compounding interest, something that has always stayed with me was his admonition to: “invest in the land and earth around you, as it may be the only finite resource as an investment choice you can make.”

I am thankful that our forebearers believed the same about the amazing majesty of places like Rocky Mountain National Park, Yellowstone, the Great Smokey Mountains, the Grand Canyon, Yosemite and so many others. Cheers to the next 100 years.

So please, as you contemplate the ways you might celebrate your upcoming Labor Day holiday, please consider visiting one of your many national parks, monuments and sites and help celebrate those visionaries that made today’s inspiration still possible.

Jim Roth, a former Oklahoma corporation commissioner, is an attorney with Phillips Murrah PC in Oklahoma City, where his practice focuses on clean, green energy for Oklahoma.

Roth: The built environment and coming trends

By Jim Roth, Director and Chair of the Firm’s Clean Energy Practice Group. This column was originally published in The Journal Record on August 22, 2016.

Jim Roth is a Director and Chair of the firm’s Clean Energy Practice.

Jim Roth is a Director and Chair of the firm’s Clean Energy Practice.

The built environment and coming trends

I once read “A house is made of bricks and beams, a home is made of hopes and dreams,” which is a great way to describe the difference between a structure and a habitat.

And we in America, where home ownership has long been described as a main ingredient to the American dream, spend a great deal of thought and action focused on the habitat, but seemingly much less intention about the structure itself. And both matter.

Most of us live in homes or apartments built by other people or companies, however large or small the development. About 66.5 percent of our state’s citizens live in owner-occupied housing, with a median value of $115,000, monthly owner costs of around $1,150 including the mortgage and an average of 2.56 people per household, according to the U.S. Census. For those of us that rent, the median gross rent is $717.

But as we learn more about choices in our built environment, Americans are becoming more conscience of the brick and beams that might determine how comfortable and how affordable our habitat becomes. Old construction techniques with cheaper windows, little to no insulation, inefficient lighting and appliances and inefficient heat and air can actually cost a family more over time than a well-built home with a slightly higher mortgage or rent and lower utilities.

Americans today, before they remodel an existing home or build a new one, are considering energy-efficiency issues more than ever and many are undertaking what’s known as the whole-house systems approach for analysis. Some utilities sponsor energy assessments and retrofit programs and many modern builders are taking the lead to achieve higher Home Energy Scores in the national rating system developed by the U.S. Department of Energy.

Some trends in housing are moving the proverbial ball even further toward ultra-efficient homes, which combine state-of-the-art construction materials and techniques, lighting and commercially available renewable energy systems, such as geothermal and solar energy technologies sited with the home. Builders are also taking advantage of climate and topographic realities to position homes to block out excessive heat gain, but also maximize passive-solar gain at times like the winter months.

Here are a few of the additional, available trends to achieve your own ultra-efficient home or remodel project:

  • Energy-efficient appliances and home electronics.
  • Conservation principles for energy and materials.
  • Low-energy lighting and greater use of daylighting.
  • Advanced house framing, which reduces lumber use and waste.
  • Cool roofs, which use highly reflective materials to absorb less heat by reflecting more of the sunlight during hot weather.
  • Passive solar heat design, such as southern-facing windows that would allow the lower winter sun to help with heat gain, but perhaps with an awning or overhang that protects from the higher summer sun’s unforgiving heat.
  • Increased focus on a healthy home environment, such as increased air and water supply quality, and reducing or eliminating harmful materials or chemicals.

So whether you are a renter saving to buy a home, a homeowner ready to remodel your built environment or a person looking to design or build your own habitat, efficiency in many more forms than ever before will be found not only in the design of these structures, but also in most of the products that are used in the construction of them. Consumer awareness and demand are growing technological choices and the development of products for the most efficient built environment in American history, sans perhaps our forebearers who lived off the local land with a mutual respect for it and it for them.

Jim Roth, a former Oklahoma corporation commissioner, is an attorney with Phillips Murrah PC in Oklahoma City, where his practice focuses on clean, green energy for Oklahoma.

Roth: Rhetoric and regulation

By Jim Roth, Director and Chair of the Firm’s Clean Energy Practice Group. This column was originally published in The Journal Record on August 15, 2016.

Jim Roth is a Director and Chair of the firm’s Clean Energy Practice.

Jim Roth is a Director and Chair of the firm’s Clean Energy Practice.

Rhetoric and regulation

I’m about to share an opinion that seems highly unpopular today: I believe there is a role for government and responsible regulation to keep people safe.

Why is that so unpopular? Or even controversial to some? Perhaps it’s because I’m an Oklahoman who dares suggest that government has a role to play in our collective lives or perhaps it’s because I’m suggesting that people may need protection, in some form, from businesses that serve the public at large.

But if you are the parent of a 10-year-old boy who died at a Kansas City water park, or of any of the three young girls dumped out of a malfunctioning Ferris wheel in Tennessee, or of the boy who fell out of a wooden roller coaster in Pennsylvania, all in the past week, you may be wondering why tragedy befell your loved one and why more wasn’t done by the regulator to keep them safe.

Regulation, such as the role of regulators to inspect and approve the operation of amusement parks, equipment and rides, comes in many forms in American life, yet it seems to have become a bad word in political rhetoric in these modern times. And to be honest, I’m really at a loss as to why.

We’ve all heard the rhetoric: “too many regulations are killing jobs” or “we don’t need government regulation micro-managing our lives.” But which specific regulations are actually killing jobs by saving people’s lives? And if that’s the trade-off, doesn’t regulation win that swap each day and in every way?

I once had a close friend, a very smart business owner with hundreds of employees, tell me he was voting for George W. Bush so he would “rein in OSHA and needless safety regulations.” My friend left me perplexed as he seemingly framed it in an excessive cost-to-doing-business argument.

Yet, when I did some research for myself, I learned that the American Journal of Industrial Medicine actually concluded that the Occupational Safety and Health Administration does not kill jobs; rather, it prevents jobs from killing workers.

The much-maligned Environmental Protection Agency is responsible for implementing and enforcing America’s Clear Air Act, among many other environmental and public health law objectives. Chiefly the Clean Air Act, first passed in 1973, and amended in 1990, both by Republican presidents, is a comprehensive federal law that regulates air emissions and air quality by removing dangerous pollutants that “endanger public health and welfare.”

As of the 2011 prospective cost-benefit analysis, it has been determined that massive reductions in pollutants like sulfur dioxide, mercury and nitrous oxide have now helped avoid up to 230,000 premature deaths for Americans over the age of 30 each year, help avoid 280 infant deaths a year, have dramatically reduced bronchitis, asthma and other respiratory disease and in turn will help America save over $3.7 trillion in annual benefits by 2020.

And yet this campaign for president features a debate over reopening old coal mines for out-of-work coal miners, who while mining the greatest source of pollution when burned, suffer much risk to injury and health themselves. The better idea may be to retrain them for something that is better for themselves and all the rest of us.

So when you hear politicians talk in large generalized platitudes attacking big, bad ol’ “job-killing regulations,” please ask them:

Which regulation can you prove has cost how many jobs?

Or, which amusement park, factory or meat-processing plant should we not inspect?

Or, what harm, injury or death to your loved ones would you say is worth having for less regulation?

And please be specific.

Jim Roth, a former Oklahoma corporation commissioner, is an attorney with Phillips Murrah PC in Oklahoma City, where his practice focuses on clean, green energy for Oklahoma.

Roth: Summer driving is not helping oil, gas

By Jim Roth, Director and Chair of the Firm’s Clean Energy Practice Group. This column was originally published in The Journal Record on August 8, 2016.

Jim Roth is a Director and Chair of the firm’s Clean Energy Practice.

Jim Roth is a Director and Chair of the firm’s Clean Energy Practice.

Summer driving is not helping oil, gas

The American Automobile Association, better known as AAA, has a motto: “Always take the scenic route.”

And America surely affords many options for great scenery along its roadsides in all corners and across this great country. But the view and the reality of how we traverse these miles are changing in ways we’ve never seen before.

In the midst of the annual “summer driving season” the price of oil and gas has seen an unusual slump, now well off double digits from around Memorial Day.

The overproduction of refined petroleum in the form of gasoline has Americans enjoying much cheaper fuel than usual and even cheaper than expected for 2016. According to GasBuddy’s 2016 forecast (, June was forecast to average $2.48 a gallon, July $2.43 and August $2.46. So far the data that’s in shows us that June came in at a national average of $2.36 and July is expected to have averaged $2.24 for unleaded fuel. These amounts are 5 percent and 8 percent lower than forecast, respectively.

So while the good news for drivers is that roadside fuel options are cheaper than normal, the view for producers and production states like Oklahoma is that the typical increased demand of summer may not be playing out to help grow commodity values for oil and gas.

In fact, the market prices have slid significantly since the start of this summer, even dipping below $40 a barrel for the first time in nearly four months. Oil prices are now down more than 20 percent since hitting $51 a barrel just two months ago, making prices officially corrected in a “bear” market now.

And the horizon is drawing further concern that this oil glut will remain with gasoline inventories at record highs. Many market watchers are critical of America’s refineries for over-refining in the past few months, which may lead to further retraction in oil prices now as crude inventories and storage are further backed up with less demand coming from those very refineries soon. The typically historic expectations, like summer demand, seem to be absent in this new world for America’s oil and gas producers.

New impacts, such as Wall Street investors and large hedge funds, are seemingly playing an even more significant role than weather, driving demand and economic output, and all indications are that those bets may carry more sway than ever before.

In fact, according to Bloomberg’s analysis of the Commodities Futures Trading Commission statistics, money managers have raised their short positions this summer by the largest amount on record, going back to 2006. America’s hedge fund managers, emboldened by producers’ increased drilling activities – six weeks of increased nationwide rig counts – are largely betting against American oil.

So all of this is great news for American drivers, with national gasoline prices averaging $2.13 a gallon last week, compared with $2.66 at this point last year.

But to be honest, I would pay a bit more for my summer road trip if I thought it would put some Oklahomans back to work and send much needed school funding back into the classrooms. But if Wall Street behavior toward the Oil Patch is any indication of the months ahead, the famous line from Bette Davis in All About Eve feels more appropriate: “Fasten your seatbelts. It’s going to be a bumpy ride.”

Jim Roth, a former Oklahoma corporation commissioner, is an attorney with Phillips Murrah PC in Oklahoma City, where his practice focuses on clean, green energy for Oklahoma.

Hasenfratz: Commercial real estate development is a team effort

This column was originally published in The Journal Record on August 4, 2016.

Sally A. Hasenfratz is a Director and a member of the Firm’s Real Estate, Tax and Family Wealth and Business Succession Practice Groups.

By Phillips Murrah Director Sally A. Hasenfratz

Commercial real estate development is a complex undertaking and must be managed with precision.

Taking a project from land acquisition to a sale or lease requires time, money and expertise. To ensure the project runs smoothly, accurately and on deadline, a team must come together and function at a high level.

The purpose of this column is to identify key players and examine their responsibilities.

  • Developers. The developer is the team leader with an overarching visionary concept and the ability to control each stage of the project in order to move it to completion. Without developers, there are no projects.
  • Title agents and surveyors. Developers work with title agents to ensure the property is clear of unintended encumbrances and to identify easements and other documents that may be recorded against the property. Surveyors then survey the land and create a graphic representation that shows the location of the project, including the structure’s orientation, access ways, boundaries, easements and related matters.
  • Architects and engineers. Architects and engineers translate developers’ vision into detailed plans by which the project will be constructed. They create the instructions on how to accurately bring the project into physical existence.
  • Builders and contractors. Builders and contractors start the process of construction. Guided by plans created by the architects and engineers, and led by a general contractor who oversees the day-to-day construction site, these team members physically build the project.
  • Regulators. Though not necessarily part of the team, regulators are important components of a project. Select team members work with regulators to make sure the property is zoned for the intended use and all necessary approvals are obtained, including building permits and the like.
  • Lenders. Lenders play a vital role on the team by funding the project. To ensure funds are properly utilized, lenders have a certain degree of oversight in the construction process.
  • Users. Typically, commercial projects are developed for sale or lease to meet the specific needs of users and occupants of the project.
  • Coordinators. Many of the team’s activities overlap or occur in a sequential fashion. Attorneys work with developers to help coordinate the process and make sure that the necessary contracts are in place.

Roth: Do you know what the parties stand for?

By Jim Roth, Director and Chair of the Firm’s Clean Energy Practice Group. This column was originally published in The Journal Record on August 1, 2016.

Jim Roth is a Director and Chair of the firm’s Clean Energy Practice.

Jim Roth is a Director and Chair of the firm’s Clean Energy Practice.

Do you know what the parties stand for?

Summers in America are renowned for great movies and many entertainment choices.

This year, and every four years in America, we also had marathon political party conventions to help entertain us with showmanship and drama. Whether it’s the Ted Cruz and his “vote your conscience” non-endorsement or the Democratic National Committee emails showing favoritism against Bernie Sanders, much of the news around this political theater focused on what happened on the stage.

But what probably matters more to Americans, and what may forecast probable impacts to our lives, is what is really happening behind the curtain so-to-speak: the party platforms.

For us Oklahomans, where we know the land we belong to is grand, there ought to be a heightened awareness to the energy, environment and climate positions and objectives of political parties and presidential candidates. So in case you are curious, here is a sampling of those platform polices just approved by both parties the last two weeks.

Democratic Party platform

  • Energy and natural resource policy: Calls on the U.S. to generate half of its electricity from clean resources in the next decade and cleaner transportation fuels; requests tax code changes to create incentives for renewable energy.
  • Environmental policy: Calls for the end of the Halliburton loophole that stripped the Environmental Protection Agency of its ability to regulate hydraulic fracturing, ensuring tough safeguards are in place to protect local water supplies.
  • Climate change position and policy: Calls for setting a price on greenhouse gas emissions; calls on government officials at all levels to take any steps possible to reduce pollution rather than waiting for Congress to act.

Green Party platform

  • Energy and natural resource policy: Advocates a rapid reduction in energy consumption through energy efficiency and a decisive transition away from fossil and nuclear power toward cleaner, renewable, local energy sources; encourage conservation; move toward renewable sources; decentralize the grid; and re-localize the food system.
  • Environmental policy: Extensive platform positions focus on environmental justice and conclude that it is founded on two fundamental beliefs: that all people have the right to live, work, learn, and play in safe and healthful environments, and that people have the right to influence decisions that affect environmental quality in their communities.
  • Climate change position and policy: Want to stop runaway climate change, by reducing greenhouse gas emissions at least 40 percent by 2020 and 95 percent by 2050 from 1990 levels.

Libertarian Party platform

  • Energy and natural resource policy: While energy is needed to fuel a modern society, government should not be subsidizing any particular form of energy; oppose all government control of energy pricing, allocation, and production.
  • Environmental Policy: Competitive free markets and property rights stimulate the technological innovations and behavioral changes required to protect our environment and ecosystems.
  • Climate change position and policy: While there is no specific reference to climate change, some related positions include: Governments are unaccountable for damage done to our environment and have a terrible track record when it comes to environmental protection; protecting the environment requires a clear definition and enforcement of individual rights and responsibilities regarding resources like land, water, air, and wildlife.

Republican Party platform

  • Energy and natural resource policy: Calls for the approval and construction of the Keystone XL pipeline to carry Canadian and U.S. fossil fuel resources to further U.S. markets; coal is an abundant, clean, affordable, reliable domestic energy resource.
  • Environmental policy: Propose to shift responsibility for environmental regulation to the states, away from the EPA, and to transform the EPA into a bipartisan independent commission.
  • Climate change position and policy: Climate change is far from the nation’s most pressing national security issue and calls for the repeal of President Obama’s Clean Power Plan; opposed to international accords like the agreement crafted recently in Paris last year; forbid the EPA to regulate carbon dioxide.

Follow these links to see more:;;; and

Happy reading and no matter what, please vote.

Jim Roth, a former Oklahoma corporation commissioner, is an attorney with Phillips Murrah PC in Oklahoma City, where his practice focuses on clean, green energy for Oklahoma.

Roth: PSO, AMI and ROI

By Jim Roth, Director and Chair of the Firm’s Clean Energy Practice Group. This column was originally published in The Journal Record on July 25, 2016.

Jim Roth is a Director and Chair of the firm’s Clean Energy Practice.

Jim Roth is a Director and Chair of the firm’s Clean Energy Practice.


Wow, it’s hot. And it looks like it’s gonna be hot for a while still, as is not a surprise to us Oklahomans.

And once you recall the incredibly warm winter we just had, one can only imagine what August may feel like here. And as we’ve been discussing the last few weeks, a high-temperature weather month can often be followed by a high-cost electric utility bill the next billing cycle.

And as we’ve learned, deployment of new technology is providing customers near real-time price information and abilities to monitor and manage monthly costs, while also providing utility providers with a new slew of information and efficiencies to improve service and lower costs. It’s proving to have a real return on investment for both sides of the meter, so-to-speak.

Case in point: AEP’s Public Service Company of Oklahoma and their advanced metering infrastructure, as of this month, is now fully deployed across PSO’s vast Oklahoma service territory with the installation of more than 560,000 new meters, including those first pilot program meters in the Owasso area beginning in 2010. And with a seemingly huge reception from all territory customers, with over 99.5 percent of customers participating in the AMI program.

PSO has rightly indicated that the AMI program will provide an array of benefits to customers.

And they are not alone as several Oklahoma electric utilities have been using this type of technology for many years and the penetration rate nationwide is nearly 50 percent. I’m glad to see our customers are faring better than the national average and I’m also glad to know that PSO meets the highest standards of cybersecurity with encrypted technology to safeguard customer information. In fact, the Oklahoma Electric Usage Data Protection Act prohibits all utilities from providing any customer information to outside third parties.

And now for the extraordinarily good news for PSO customers: With the full installation of this metering technology, PSO was greatly aided in responding to the devastating storms and outages earlier in July (with 109,000 customers out at one point it was the third-largest storm by customers affected in PSO’s history), the AMI made possible the restoration of service to nearly everyone within three days.

And for those regular storm-free days when Oklahoma’s heat bakes the state, AMI has helped PSO provide new programs for customers’ budget needs, such as PowerHours and PowerPay.

PowerHours, which is similar to OG&E’s SmartHours program, runs June through October and allows enrolled customers to choose from four programs to save money through managed use.

Information on the options is available at

Likewise, PowerPay is a voluntary program where customers can prepay for their usage, giving them greater control over the frequency and timing of their payments. No more surprise utility bills the month after high prices. Instead the customer is engaged in energy consumptions, management and related savings in this pay-as-you-go approach. It’s not for everyone, but is a good option for many, so please check it out and see if it’s right for your budget and household.

The return on PSO’s AMI investments can be directly enjoyed by its customers who explore these options, enroll in those that make the most sense for them, and control their own destiny through price signals, energy shifts and energy savings. It’s an exciting time when the cost of next month’s utility bill is based upon what customers choose to do this month for themselves.

Jim Roth, a former Oklahoma corporation commissioner, is an attorney with Phillips Murrah PC in Oklahoma City, where his practice focuses on clean, green energy for Oklahoma.

NewsOK Q&A: Data on your personal phone may be available to your employer

From NewsOK / by Paula Burkes
Published: July 19, 2016
Click to see full story – Data on your personal phone may be available to your employer

Click to see Kathy Terry’s attorney profile

The emphasis of Kathryn D. Terry’s litigation practice is in the areas of insurance coverage, labor and employment law and civil rights defense.

Q: What are personal electronic devices and why do they matter?

A: The use of personal electronic devices (PEDs) in the workplace is commonplace, but it’s not without risk for both the employer and the employee. If not managed properly, employers risk the dissemination of their confidential information and employees, perhaps rightly, have privacy concerns.

Q: What can an employer do to protect its business information?

A: Employers need a written PED, or bring your own device policy, signed by employees. Your policy should address several matters: the employer’s information always belongs to the employer; upon termination, it must be deleted immediately in the presence of the employer’s representative; all communications that go through the employer’s server are fair game for the employer and the employee has no expectation of privacy in those communications; only approved websites can be accessed via the employer’s server and accessing an unapproved website may result in severing of the server access and/or deletion of data, even the employee’s personal data, from the phone electronically; and the company always should have access to/be informed of the employee’s password for connectivity between the company server and the PED.

Q: So personal data, including contact lists, phone numbers and pictures, can be deleted from the employee’s own phone? 

A: Yes, though this area is evolving almost daily nationwide. There are lots of different federal laws and statutes in every state, including common law, which could be implicated. Please consult an attorney before charging ahead. Large companies are moving toward policies that give advance notice to an employee that upon termination if he/she fails to cooperate in the deletion of company information, the company can and will wipe all data from the phone (or other PED) and return it to factory settings. Most of the recent case law out there comes down in favor of the employer and rejects claims by employees under various federal laws, like the Electronic Communications Privacy Act or the Computer Fraud and Abuse Act.

Q: Don’t employees have a right to privacy in their own communications, on their own phones?

A: So far, there’s no case out there that has found an employer can’t, under any circumstances, search a PED for data. Courts looking at whether a private employer has overstepped by searching PED communications do emphasize privacy concerns and they recognize each case is fact specific. But, typically, if that data is coming through a company server, the company can take a look. We recommend the employer narrow any such search to work related/topic specific communications.

Q: Are the rules the same for government employers?

A: Not really. Governments have to worry about the Fourth Amendment, unreasonable searches and seizures, and more often than private employers, union contracts. So far, most court and administrative rulings favor the government employer who searches a PED, but those cases get close factual scrutiny. Also, in the case of public employees (elected officials included), the Freedom of Information Act and, here in Oklahoma, the Open Records Act, are applicable. Work-related communications, even on a PED, are public records. If a government employer needs to search for and retrieve communications that are work related from a PED, that search is going to be permissible.

Q: What about quality of life and working after hours?

A: If your employees aren’t overtime exempt, after-hours texting and emailing should be included in the employees’ time records, and they should be paid for it, even if it results in overtime pay at a higher rate. Employers concerned about the increased wage expenditures should consider limiting PEDs use to only overtime-exempt employees. If this isn’t possible, a policy should be written and adhered to that results in very limited after-hours communications, and includes clear guidelines on how to account for the time and resulting compensation when those communications do occur.

Q: Do we have to reimburse employees if they use PEDs for work?

A: In some states, the answer is yes. Here in Oklahoma, we don’t have a bright line rule requiring reimbursement for an employee who uses a PED to conduct work-related tasks. However, many Oklahoma employers are moving toward reimbursement, or partial reimbursement at minimum.

Q: What about litigation holds on electronic data that may be discoverable?

A: If you’ve ever had to produce electronic data during the course of a lawsuit, you know that can be very burdensome. You also know that if you’re on notice of a potential claim against your company, you will need to be sure the company has policies and practices in place that work to preserve potentially discoverable documents, communications and data. Certainly, if your company’s employees are communicating and working on PEDs, there needs to be a process in place designed to reasonably capture and preserve that information, communication and data that may be stored or saved to PEDs, as opposed to a company network server.

Director quoted as source in article on Oklahoma Supreme Court case

Heather L. Hintz primarily represents banks, commercial entities and municipalities in litigation in state and federal courts with an emphasis on protecting hard-fought rulings throughout the appeals process.

Phillips Murrah Director Heather Hintz defended her stance on Oklahoma State Question 777 in an article published on on Wednesday.

Read Hintz’s comments from the article below:

Attorneys for opponents of the ballot measure have filed an accelerated appeal in the case, in hopes the Oklahoma Supreme Court will take up the matter before a deadline in late August for the Oklahoma Election Board to print the November ballot, said Heather Hintz, an attorney for plaintiffs in the case.

“We are asking the Supreme Court to retain the appeal because it’s a matter of public importance that has widespread public impact,” Hintz said.

The plaintiffs have challenged the constitutionality of State Question 777 on several grounds, and argue that the measure is so blatantly unconstitutional that it would be a waste of state resources and misleading to voters, Hintz said.

“There is a strong Oklahoma policy that something that is facially unconstitutional should not go to the ballot because it’s a waste of resources and it misleads voters,” she said.


Roth: It’s 4 p.m. Do you know where your thermostat is?

By Jim Roth, Director and Chair of the Firm’s Clean Energy Practice Group. This column was originally published in The Journal Record on July 11, 2016.

Jim Roth is a Director and Chair of the firm’s Clean Energy Practice.

Jim Roth is a Director and Chair of the firm’s Clean Energy Practice.

It’s 4 p.m. Do you know where your thermostat is?

It used to be asked if people knew where their children were at 10 p.m. as a form of safety check and good parenting. And that edict proved a helpful reminder.

But now, other times of the day pose danger for your families and only until recently can we help avoid or lessen those dangers.

It’s the risk to your families’ budgets from extraordinarily high electricity prices that occur often in the summer afternoons. For many decades before now, Americans never knew what cost spikes existed, leading to unpredictable monthly electricity bills. But the times they are a-changin’.

This past week as I stood in line at the post office a few minutes before 4 p.m., I received a text message as a participant in OG&E’s Smart Hours Program alerting me to a “critical price event,” beginning at 4 p.m., where the price of electricity would escalate to 44 cents per kilowatt-hour, more than four times the usual average.

A gentleman in line behind me must have received the same text as he soon thereafter called home to ask his wife to “turn up the thermostat and turn off the unnecessary appliances for the next three hours.”

And this man was probably in his mid-80s and seemed delighted at the opportunity to react to a price signal and save his family money. Each day’s text message also forecasts the price of the next day’s prices between 2 and 7 p.m., usually at the “high rate of 18 cents per kWh.” This is revolutionary.

And we Americans have seen other, once-dominant, mostly utility-like monopolies move to finally provide price signals for the consumers. I am referring to telecommunications and the growth of price transparency and ultimately competition.

Once we Americans learned to not “call family and friends until after 7 p.m.” it revolutionized the cost of long-distance and base rates for phone service and led to consumer choice, innovation and competitiveness. It also led to the decline in landline phones and the emergence and now prolific existence of wireless devices.

Today, we are just 20 years after the federal deregulation of telecommunications under President Bill Clinton, when the Telecommunications Act of 1996 was the first significant change in 60 years, and included the first inclusion of the internet in these issues. And today, most Americans have more technology in the palm of their hands than ever before and consumer price signals and consumer choice have ushered in a whole new reality.

The same is on the verge of being true for your electric utility bill, although not required by federal enactment, but driven by new technologies, consumer education and electricity providers working to usher in a new generation of electric generation.

Next week I’ll highlight a few of the global trends and the local utility options available to us Oklahomans in this relatively new and exciting frontier.

In the meantime, if it’s between 4 and 7 p.m. today, you might consider adjusting your electricity usage and saving your family some of that hard-earned money.

Jim Roth, a former Oklahoma corporation commissioner, is an attorney with Phillips Murrah PC in Oklahoma City, where his practice focuses on clean, green energy for Oklahoma.

NewsOK Q&A: High court’s tie in assault affirms tribe’s self-determination right

From NewsOK / by Paula Burkes
Published: June 30, 2016
Click to see full story – High court’s tie in assault affirms tribe’s self-determination right

Click to see G. Calvin Sharpe’s attorney profile

G. Calvin Sharpe has 30 of years of experience in Oklahoma courtrooms, representing a diverse list of business clients in matters relating to medical malpractice, medical devices, products liability, insurance and commercial litigation.

Q: Generally speaking, what was the Dollar General case about, originally?

A: In the original case, there was a Dollar General store operating within the Reservation of the Mississippi Band of Choctaw Indians. A 13-year-old boy, a tribal member, was working at the store as a part of a youth opportunity program. In 2005, a suit was brought by the boy’s parents that alleged that the boy was sexually assaulted by the store’s nontribal manager in the summer of 2003. In the binding contract with the tribe to operate on tribal land, Dollar General agreed to tribal court civil jurisdiction, so the case went to a tribal court. The Choctaw courts denied a motion to dismiss the case due to lack of jurisdiction citing a 1981 Supreme Court Case, Montana v. United States, which held that a “tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members.” Dollar General subsequently sued in federal court to clarify the terminology, “other means.” (Dollar General Corp. v. Mississippi Band of Choctaw Indians)

Q: The Supreme Court decision was tied, 4-to-4, which means that the lower court decision of the U.S. Court of Appeals for the Fifth Circuit is upheld. What was that Fifth Circuit’s upheld decision?

A: At the heart of this decision is the question of whether tribal courts have the right to exercise civil authority over people who are operating within tribe’s jurisdiction, but who aren’t tribal members. In the federal case subsequent to the tribal rulings in Choctaw courts, Dollar General petitioned for certiorari, which means they asked a higher court to review the determination of a lower court. In the judgment of the U.S. Court of Appeals for the Fifth Circuit, Indian tribal courts have jurisdiction to adjudicate civil tort claims against nonmembers, including as a means of regulating the conduct of nonmembers who enter into consensual relationships with a tribe or its members.

Q: How has this Supreme Court ruling, essentially allowing the lower court decision to stay, changed the nature of tribal jurisdictional authority?

A: In the decision of the appeal to the Supreme Court of the United States of America, the high court was deadlocked, which allows the decision of the U.S. Court of the Appeals for the Fifth Circuit to stand. The judgment is affirmed by an equally divided court, (which) allows the case to proceed to resolution in tribal court without further appeals regarding authority. However, there’s the likelihood that, in a similar case, the Supreme Court would grant another certiorari when the Senate confirms a replacement for Justice Scalia.

Q: Why is this viewed as a success for tribal sovereignty and tribal governmental authority?

A: Thursday’s Supreme Court ruling served as a significant win in the fight for native tribal court authority. The Supreme Court tie affirms native groups’ right to self-determination. This allows federally recognized tribes to continue developing their own governmental bodies.