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Commercial lease covers it all – right?

Gavel to Gavel appears in The Journal Record. This column was originally published in The Journal Record on April 20, 2017.


Jennifer Ivester Berry is a member of the firm’s Transactional Practice Group as an Of Counsel attorney. Jennifer represents individuals, privately-held and public companies in connection with a wide range of commercial real property matters.

By Phillips Murrah Of Counsel Attorney Jennifer Ivester Berry

For those involved in leasing commercial real estate – whether new to leasing or a seasoned industry pro – signing a lease can be a daunting endeavor.

The devil is in the details, and, more often than not, many standard forms omit critical considerations. Accordingly, a close examination of the terms is essential for a quality commercial lease.

Below are five important points to consider when leasing commercial property. These items are not intended to be exhaustive, but rather a starting point for the purposes of evaluation.

• Experience – Knowing the background and temperament of the other party is important. Is leasing commercial property the landlord’s primary business? Will a management company operate the property? Is the tenant established or just starting out? A knowledgeable, cooperative working relationship is imperative for a successful commercial lease.

• Type of lease – Details of what costs are covered and how they are apportioned should be carefully reviewed. For example, leases often described as triple net, meaning that the tenant is responsible for all costs associated with the leased premises other than structural repairs, can actually be a blend of two types of leases, triple net and gross. A gross lease splits the structural repairs and operation expenses between the landlord and tenant.

• Identification of leased premises – Often the outline of the space and delineation of its parameters is an attachment that does not make it into the lease until the end of the negotiations. It is important to verify up front that what is provided meets both parties’ expectations.

• Costs – Payments under a commercial lease can be categorized in several different ways, including rent, common area maintenance, assessments and dues. Awareness that a lower rental rate might be counterbalanced by a monthly fee for maintenance of the property, which is set to automatically increase each year, is essential. The ultimate focus should be on the full monthly cost, regardless of what it is called under the lease.

• Insurance – Insurance coverage requirements will vary based on lease type. It is important to identify two things: what the lease requires and whether such coverage is available, and whether the cost associated therewith is factored into the overall lease costs.

Jennifer Ivester Berry is an attorney at Phillips Murrah who specializes in commercial real estate property and energy-related matters.

Director Jim Roth sourced in article on Oklahoma’s solar energy potential

Jim A. Roth, Phillips Murrah

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

Jim Roth, Phillips Murrah Director and Chair of the Firm’s Clean Energy Practice, was quoted in an Oklahoma Gazette article by Laura Eastes regarding solar energy technology and Oklahoma’s potential as a leader in the solar industry.

Read Roth’s comments from the article below:

Row after row of solar panels, which rest perfectly aligned and angled to the west, fill an open field along NW 10th Street in western Oklahoma City. When OG&E’s 2.5-megawatt solar farm began harvesting energy from the sun less than two years ago, the company hawked the farm’s ability to power a one-stop-sign town.

As the sleek metal of the solar panels glistens in the blazing sun, the electric utility company’s aging natural gas plant stands in the background. When it comes to power stations, natural gas is king in Oklahoma, but indicators show solar has a bright and rising future.

“There is a tremendous amount of energy hitting the surface every day and we haven’t yet developed measures to capture it,” said Jim Roth, a director and chairman of Phillips Murrah law firm’s Clean Energy Practice Group and a former Oklahoma Corporation Commissioner. Roth represents solar and wind energy developers for the Oklahoma City business law firm.

“The technology is catching up,” he said. “Oklahoma is uniquely situated in that the best sun penetration happens at the time of day which is the most expensive time in the market. We not only have a lot of opportunity for local use, but we also have the ability to export at the height of the market each day.”

Across Oklahoma’s western border and into the Texas Panhandle are hints of a solar boom. Roth said the major Texas projects foreshadow Oklahoma’s future.

Within Oklahoma, solar energy has caught the attention of utility companies. It’s not limited to the OG&E solar farm in OKC. Public Services Company of Oklahoma’s (PSO), which services areas around Tulsa, McAlester and Lawton, recent long-term plan calls for the addition of solar resources. Additionally, rural electric cooperatives are diving into small-scale solar farms.

“The reality is the technology is there and solar is being implemented all around the country,” Roth said. “I really believe this is our greatest potential — we have such blessings with clean natural gas underground, such blessings with world-class wind and with solar opportunity. Few states, if any, have the trifecta. … Oklahoma is actually perfectly situated for the future which is unfolding.

Read the full article from the Oklahoma Gazette.

NewsOK Q&A: Laws allow for various contingencies in dealing with bankrupt companies

From NewsOK / by Paula Burkes
Published: April 18, 2017
Click to see full story – Laws allow for various contingencies in dealing with bankrupt companies

Click to see Gretchen Latham’s attorney profile

Gretchen M. Latham’s practice focuses on representing creditors in foreclosure, bankruptcy, collection and replevin cases. She offers these services to her clients on a statewide basis as well as in all three Bankruptcy and Federal Court Districts in Oklahoma.

Q: Can a lender still do business with a bankrupt company?

A: Most generally, yes. When a business files for bankruptcy, the type of case is most commonly a Chapter 11 case. In a Chapter 11, it’s possible for the company to remain in possession of its assets, including equipment and inventory, and continue to do business. This includes interacting with vendors and lenders on a regular basis. As a creditor, the safeguard in place for repayment of any loan made to a company operating under a Chapter 11 is that post-petition debts are given priority as an administrative claim. This helps to eliminate some of the risk, and provide assurances of repayment. However, if the type of case filed is a Chapter 7, the company will no longer be operating its business and all of its assets are scheduled for liquidation.

Q: Can goods that are shipped to a Chapter 11 debtor be recovered?

A: The Bankruptcy Code does allow for reclamation of recently shipped goods, pursuant to 11 U.S.C. Section 546. There’s a somewhat tight timeline for exercising the right of reclamation, which must be precipitated by making demand.

Q: How can I get paid by a Chapter 11 debtor?

A: An option for making a payment claim, which is not unique to a Chapter 11 case, is for a creditor to file a proof of claim. The proof of claim will set forth the balance due and payment terms. The deadline to get a claim on file will vary from court to court, and the required form is typically provided with notice of the filing. Payment on a proof of claim can take a while, so be prepared to wait for the case to come to completion.

 

Roth: Earth Day in action

By Jim Roth, Director and Chair of the Firm’s Clean Energy Practice Group. This column was originally published in The Journal Record on April 17, 2017.


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

Earth Day in action

April is a busy time with significant holidays like Passover and Easter.

It’s also a time to celebrate the reawakening of the natural world around us as the spring equinox springs fauna and flora to life around us. And with Earth Day, April 22, approaching, it’s a great time to jump up, get out and put our lives in action for the world around us.

The first Earth Day on April 22, 1970, activated 20 million Americans from all walks of life and is widely credited with launching the modern environmental movement, although a growing consciousness had been building in America for decades. Soon the passage of landmark acts, such as the Clean Air Act, the Endangered Species Act and the Clean Water Act brought national prominence to these efforts. By the 1990s, Earth Day had spread across the Earth, activating more than 200 million people in over 140 countries and creating a true global awareness of the world we share in common.

So as we approach the 47th birthday of Earth Day in America, we can take great comfort in the tremendous progress that has actually been achieved here and abroad over these years and yet we have serious concerns that continue to mount and are causing grave, yes, grave consequences.

• Forests: Our planet is currently losing 56 acres of forests every minute, amounting to over 15 billion trees every year. These fading forests are necessary to combat climate change, de-carbonize our atmosphere, sustain important species and provide shelter and security to people across the globe. Former forested areas are now prone to massive erosion and displacement of cultures and animals worldwide.

• Species: Earth’s species are now going extinct faster than ever before and we have entered what credentialed scientists have described as a “sixth mass extinction brought on by global human activity.”

Whether you are motivated by faith, as many faithful people believe we have a calling to honor the world provided by the Creator, or whether you are motivated by a humanistic call to save lives from climate harm and disease brought on my droughts and famine, there are a few easy and obvious actions steps you can take to make a difference:

• Plant a tree or donate to plant a tree.

There are a number of national and world charities that do great work to reforest our planet and your modest donation can go a long way. Likewise, visit a local nursery and plant a new tree in your own yard, with your family’s help, and create a daily reminder of the tree of life out your own front door.

• Reduce your footprint.

There are many online tools to measure your ecological footprint to learn how to reduce your footprint on the planet. Here is a great link to get started: www.earthday.org/reduce-footprint-take-ecological-footprint-quiz.

• Stop using disposable plastic.

Make the decision today and simply stop. Carry your own bag into stores, insist on recycled paper bags or simply carry items in your arms the old-fashioned way, but however you stop using plastic, just stop. They are filling up landfills, polluting oceans and entangling and killing animals everywhere.

• Believe in science and let your voice be known.

There are activities all around this country, including a March for Science on the National Mall on Earth Day to fight efforts to silence science and instead create community engagements and knowledge sharing. As my partner likes to say: “science doesn’t care if you believe it or not, it just is science.”

This Earth Day is a great time to engage with yourself, your children, your family, your church, community and neighbors to do deliberate acts of good to help save Mother Earth. She really needs our help.

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.

NewsOK Q&A: FBI warns against doctors, dentists using ‘anonymous mode’ computer servers

From NewsOK / by Paula Burkes
Published: April 12, 2017
Click to see full story – FBI warns against doctors, dentists using ‘anonymous mode’ computer servers

Click to see Mary Holloway Richard’s attorney profile

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.

Q: What attention has the FBI recently given to protect Protected Health Information (“PHI”) from cyber criminals?

A: Under a “Private Industry Notification” dated March 22, the FBI’s Cyber Division has provided guidance that’s applicable specifically to medical and dental providers and focuses on protection of sensitive, identifiable health information.

Q: What does the notice specifically recommend?

A: The notification recommends these health care providers request that their IT services personnel take steps to further secure the information from cyber threats by checking networks for File Transfer Protocol (“FTP”) servers running in anonymous mode. FTPs routinely are used to transport information between network hosts. This is the case, for example, when a covered entity such as a hospital or group practice transfers information to a business associate, such as a billing company or a third-party payer, for the purpose of submitting claims for services provided.

Q: What does “anonymous mode” mean and what threat does it represent?

A: “Anonymous mode” refers to the situation where an FTP server can be structured to permit users who are anonymous, doesn’t require a password to enter, and accepts common user names such as “anonymous” or “FTP.” The danger is that, in such circumstances, sensitive patient information stored on a server could be accessed with little or no security.

Q: Why does the FBI guidance focus specifically on health care?

A: Research conducted at the University of Michigan in 2015 resulted in a finding that more than one million FTP servers would allow such access. According to the FBI, some computer security researchers seek servers in anonymous mode as part of legitimate research, but others make such connections to facilitate nefarious activities such as launching cyber attacks, hacking, blackmailing, harassing and intimidating business owners. It’s the FBI’s purpose issuing this new guidance to both make health care business aware of the risks represented in their IT systems and to shore up weaknesses that pose cyber security risks. In addition to the precautions urged in the notice, the FBI has previously urged companies to buy and implement ransomware defense software.

Q: Should additional actions be taken by medical and dental health care entities to provide additional protections against cyber crime?

A: The FBI encourages medical and dental health care entities to report suspicious or criminal activity to the local FBI field office (locate via www.fbi.gov/contact-us/field) or the FBI’s 24/7 Cyber Watch, CyWatch 855-292-3937 or CyWatch@ic.fbi.gov. Submitted reports must include available information regarding the date, time, location, type of activity, number of people and type of equipment used for the activity, the name and contact person for the entity submitting the report. Victim complaints can be filed with the internet Crime Complaint Center at www.ic3.gov.

 

Firm selects March Employee of the Month

Rae White

Rae White, Legal Assistant, is Phillips Murrah’s Employee of the Month for March 2017.

“I am blessed to work with such wonderful people, and I love my PM family,” White said. “This past year has really shown me how lucky I am to be a part this Firm.”

The Employee of the Month is selected anonymously by Phillips Murrah staff on merits of teamwork and overall contributions to the Firm.

“Rae is an experienced and exceptionally talented legal assistant who is always upbeat and positive,” Director Fred A. Leibrock said. “She is a great contributor to the success of the Firm, and we are very lucky and pleased to have her as a member of the team.

“She is most deserving of being the Firm’s Employee of the Month.”


Phillips Murrah is the only law firm recognized as an Oklahoma Top Work Place by The Oklahoman/WorkplaceDynamics. Our Firm strives to recognize and reward our employees for excellence. Each Employee of the Month is chosen by a monthly survey of peers.

Roth: Oklahoma, Caveat Emptor?

By Jim Roth, Director and Chair of the Firm’s Clean Energy Practice Group. This column was originally published in The Journal Record on April 3, 2017.


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

Oklahoma, Caveat Emptor?

As travelers enter into Oklahoma on one of 11 major highways from other states, they are greeted by a beautiful red granite monument featuring the Oklahoma state seal and the word Oklahoma.

However, to be fair, and based upon recurring actions from our state leaders, truth in advertising may require we amend the signs to read “Oklahoma, Caveat Emptor.”

“Caveat emptor” is a Latin phrase meaning “let the buyer beware.” Similar to the phrase “sold as is,” this phrase suggests that the buyer assumes the risk that a product may fail to meet expectations or be defective. The phrase is actually shortened from a longer legal concept, which is: Caveat emptor, quia ignorare non debuit quod jus alienum emit, meaning “Let the purchaser beware, for he out not be ignorant of the nature of the property which he is buying from another party.”

Now we Oklahomans surely pride ourselves on being good people who will look you in the eye and bind ourselves through our word and a handshake. Moreover, we should not need Latin phrases to prove our trustworthiness, or more accurately excuse our lack thereof. But times they are changing if the actions around our floundering state budget continue to erode the confidence of our own citizens and those precious investment dollars we invite in to help grow our state. Simply put, our erratic debtor’s behavior is making us a risky place to do business, and whether our welcome signs declare it or not, our legislative actions are spreading the word beyond our borders.

Last year, numerous bills were introduced targeting existing tax credits and other incentives, causing investors and companies in energy and aerospace to purportedly remove Oklahoma as a place to grow, expand or invest. Then near the end of the session, and without much warning, quick action immediately eliminated a tax subsidy for oil and gas wells that had become unprofitable due to the massive and sudden downturn in energy prices. Yes, an argument can be made that the budget hole necessitated drastic action, but to that operator that kept employing Oklahomans it probably felt like being kicked while you were already down.

Now this year, similar sudden action has been taken by both the House and the Senate to rip an existing tax incentive away from projects that are actually under construction in Oklahoma with the wind energy industry. Oklahoma invited billions of dollars in and now claims we cannot keep our word even though changing our word has zero effect on this coming year’s budget.

Standard & Poor’s global ratings announced in March it has lowered our bond rating a notch stating: “The downgrade reflects our view that persistently weak revenue collections – leading to a declared revenues failure for the remainder of the fiscal year (2017) – have further compounded the state’s challenge to achieve structural balance in fiscal 2018.”

These are desperate times and as is said, desperate times call for desperate measures. Our failed funding of public education is a crisis, which reverberates through our lives and economy in multiple ways beyond dropout rates and low test scores. It means higher incarceration rates and socialized expenses. It means greater poverty rates, hunger and divorce. It is a crisis and must be solved. We need steady, structural change to create revenue for our state’s needs.

However, to be erratic toward investment dollars, which we desperately need to grow our state towards more stable times, is a risk that can forever impair our state’s fullest potential. If we have become a credit risk, lenders will deploy their capital in more reliable states and the downward spiral continues here through less financing, fewer company expansions, and higher costs of debt, fewer energy projects and fewer jobs.

While desperate times may in fact exist, we Oklahomans should not ever trade in our good name. Not for an annual budget hole, not for political pressure, not for anything.

Others are watching our words and actions and they may rewrite our welcome sign for us.

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.

Phillips Murrah Insurance Defense Attorney discusses commercial trucking and e-discovery issues in AM Best Webinar

Kayce L. Gisinger is a litigation attorney at Phillips Murrah with extensive trial experience, which includes the defense of cases involving product liability, auto and trucking negligence, premises liability, medical malpractice, legal malpractice, employment law and general negligence.

Phillips Murrah Of Counsel Attorney, Kayce L. Gisinger, participated on Wednesday in a webcast panel discussion of insurance and claims experts, sponsored by A.M. Best, a global credit rating agency, data provider and news publisher that focuses on the insurance industry.

Titled “Pileup in Commercial Auto,” the webinar focused on the subject of difficulties in the highly competitive commercial automobile claims market. Subjects discussed were factors driving litigation and losses, how companies’ underwriting is changing, and how ride-hailing services and autonomous vehicles are poised to change the sector.

“It’s a great opportunity for those in the commercial auto industry to stay current on the critical issues they are facing in litigation today and learn proactive solutions,” Gisinger said. “The format allows for the analysis of questions and concerns claim’s handlers are dealing with on a daily basis.”

From a legal defense perspective, regarding how new, on-board vehicle technology is changing the transportation industry, Gisinger said:

“One of the immediate effects is going to be an increase in electronic discovery, which is becoming more invasive all the time from the defense standpoint. The downside of technology in terms of commercial vehicles is the expectation that all vehicles should be fully equipped and it opens us up more to electronic discovery. Plaintiffs’ counsel are demanding wholesale access to our clients’ and our carriers’ computer systems. I see that now with discovery disputes that are going on, and I’m sure it’s going to become more and more common as more technology is placed inside these vehicles.

Technology is used to increase the safety factor and also to monitor the drivers, which documents and makes more available evidence that can be used against us. The trend under the new requirements for commercial carriers, as well as the safety measures that companies are implementing, is really opening up the scope of discovery. It is also widening the issues that plaintiffs’ experts are talking about in terms of what’s available to us and why are we are not using it; the implication being that we don’t want to document it because we want to hide our practices and what our drivers are doing.”

The full informative discussion is now available in the A.M. Best webinars archives. The website is free, but registration is required through the A.M. Best website member center.

Other panelists include Nathan Edmonds, Senior Partner at Secrest Wardle; Mark Vanneste, Partner at Secrest Wardle; and Andrew Gibbs, Partner at Lindabury, McCormick, Estabrook & Cooper, P.C.

Phillips Murrah is endorsed by A.M. Best as a Client Recommended Firm.

Jim Roth talks about Pres. Trump’s Energy Executive Order on Oklahoma News Report

On Friday, Phillips Murrah Director and Chair of the Firm’s Clean Energy Practice Group, Jim Roth, appeared on the television show Oklahoma News Report on OETA.

Roth spoke with reporter Bob Sands about President Trump’s energy-related executive order that initiates a review of former President Obama’s Clean Power Plan, which restricts greenhouse gas emissions at coal-fired power plants.

According to the ONR report, Oklahoma public utilities are moving forward on new renewable energy projects despite the President Trump’s order.

“Market dynamics are going to dictate the outcome, not political will,” Roth said on the news program. “We’re at a point, thankfully, in American ingenuity that renewable technologies have improved to point to where they are often the cheapest form of energy.”

From Oklahoma News Report:

The president’s executive order to the EPA to rewrite the Clean Power Plan doesn’t mean much according to Oklahoma utilities and energy experts. OG&E says it is on target already to meet the plans requirements and is now planning a new solar facility. Energy experts say renewables have already replaced coal in the amount of electricity being generated in Oklahoma. This story aired on the ONR on OETA-The Oklahoma Network. For more information, go to the ONR web site http://www.oeta.tv/programs/onr. For more about OETA-The Oklahoma Network, visit www.oeta.tv.

Click on the video player below to view an edited video featuring Roth’s segments on the news program:

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To see the full ONR news segment as it was broadcast on OETA, click here:

Roth: OKC in top 10 U.S. cities for solar potential

By Jim Roth, Director and Chair of the Firm’s Clean Energy Practice Group. This column was originally published in The Journal Record on March 27, 2017.


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

OKC in top 10 U.S. cities for solar potential

Google’s “Project Sunroof” program just expanded into every state in America to ascertain which areas are most suitable for solar power and not surprisingly sunny Oklahoma, and specifically sunny Oklahoma City, came out in the top 10 cities across this great country. While Houston was ranked No. 1, Oklahoma City achieved the eighth-best spot, besting Dallas and Albuquerque to round out the top 10.

Overall, the expanded analysis concluded that 80 percent of all American rooftops assessed are suitable and can technically benefit from the installation of solar panels for energy generation. That is an astounding reality and speaks to the coming enormity of solar energy for our country’s future, especially as technology is improving fast and prices are dropping precipitously.

Curious about your own home’s potential? Please check out the project website and simply put in your ZIP code at: www.google.com/get/sunroof#p=0.

My own home was analyzed and shows the potential for at least $3,000 in estimated savings over 20 years due to:

• 1,695 hours of usable sunlight per year, based on day-to-day analysis of weather patterns.

• 352 square feet available for solar panels, based on 3-D modeling of my roof and nearby trees.

• Recommended solar installation size of a 4.75-kilowatt system that could provide more than 21 percent of my electricity consumption (in reality I would probably size it even larger to live freer from dirtier electricity).

All of this great analysis is free and provided using Google Earth and Google Maps technology to build specific 3-D models by assessing weather, trees and other factors that affect your roof’s potential to the sun’s exposure. It was fascinating to see it actually illustrate my own home’s roofs and the analysis specifics, based upon my electricity consumption.

And while it doesn’t yet speak to the local policy issues impacting these equations, such as the fact Oklahoma utilities aren’t yet required to pay homeowners “fair value” price for the energy that your rooftop system may “export” back to the grid for use by others, it does illuminate many of the basics that can get your analysis started. The website even lists solar providers in your area so you can take the next step to have industry experts visit your home and help calculate your system options, payback timelines and any local, state or federal incentives that might help.

In addition, as an aside, please know that the future is looking bright for Oklahomans to adopt more solar energy, as just last week the Oklahoma Corporation Commission voted to block a utility’s request to raise charges on rooftop solar customers. The case centered on the reality that when you study the economics, neighbors with rooftop solar energy are actually providing greater benefit to their neighbors through exported energy than those customers themselves cost the system to tie into the grid. That helps Oklahoma move from its current ranking of 48th in solar adoption toward the enormous potential we have as Oklahoma City ranked eighth suggests.

What are you waiting for? Chances are really good the sun will come up again tomorrow.

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.

Director Jim Roth sourced in article about proposed task force to examine Oklahoma’s Corporation Commission

Jim A. Roth, Phillips Murrah

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

Jim Roth, Phillips Murrah Director and Chair of the Firm’s Clean Energy Practice, was quoted in a Journal Record article by Sarah Terry-Cobo regarding a House Bill that seeks to create an 11-member task force to examine Oklahoma’s Corporation Commission is structure and funding.

Read Roth’s comments from the article below:

OKLAHOMA CITY –  Utilities, drillers, and telecommunications companies could have an opportunity to scrutinize one of their regulators.

State Rep. Weldon Watson said it’s time to take a closer look at the Oklahoma Corporation Commission and give those directly affected by the agency a chance to suggest changes. But at least one industry trade group representative questioned the timing and the need to dig into the agency.

Jim Roth, clean energy practice group director at Phillips Murrah, said reviewing the agency is an excellent idea.

“This is overdue,” he said. “Does the agency have all it needs structurally to function in the modern era?”

The agency and its staff of about 400 do an incredible job for very little money, Roth said. Often, some of the best employees are hired by the industries they regulate, he said.

Roth was a commissioner, serving from 2007 to 2010. He said he assumes the bill was brought with the best intentions to help the agency and the state get it right.

However, the proposed task force should be broader, he said.

“I don’t see one member of the task force without a conflict to the industry,” Roth said. “It’s important that Oklahomans not employed by these companies should have a voice.”

Read the full article at the Journal Record.

Roth: Pushing American ingenuity forward

By Jim Roth, Director and Chair of the Firm’s Clean Energy Practice Group. This column was originally published in The Journal Record on March 20, 2017.


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

Pushing American ingenuity forward

Two cars leave Detroit at the exact same time, traveling 60 miles per hour, headed to drive through every state in the continental United States over the coming years.

Car A begins and maintains a steady 34-miles-per-gallon fuel efficiency during every year of its journey, while emitting 3 billion tons of carbon dioxide into the atmosphere over eight years. Car B begins year 2017 with 34-miles-per-gallon fuel efficiency and adjusts upward each year to a level of 54 miles per gallon by 2025, while emitting only 2 billion tons of carbon dioxide during the same eight-year period.

Now unlike those typical rate-time-distance math questions, this presents a more direct question for the American consumer: Which car would you want to own?

For me, and my family’s budget, the answer is Car B.

Moreover, perhaps the bigger question, the great unknown with the scenario above that is actually beginning to play out in national politics today, is: Which car will be available for you from an American manufacturer?

That answer seems more likely to be Car A, if “Detroit” gets its way.

The Corporate Average Fuel Economy, or CAFE standards are American regulations, first passed by Congress in 1975 in reaction to the 1973 Arab Oil Embargo. These regulations exist to improve the average fuel economy of cars and “light trucks,” including trucks, vans and SUVs, produced for sale in America. The calculations and mathematical formulas for setting the CAFE standards have evolved over time and since 2012, the standards are determined through an inverse-linear formula reflecting the footprint of various vehicles by fleet.

The National Highway Traffic Safety Administration regulates CAFE standards and the Environmental Protection Agency measures vehicle fuel efficiency. Congress specifies that CAFE standards must be set at the “maximum feasible level” given consideration for: technological feasibility; economic practicality; effect of other standards on fuel economy; and need of the nation to conserve energy.

I wish that Congress would actually include a fifth consideration for the “need for American consumers to save money” or at least “need for American ingenuity to be pushed forward.”

While it’s probably true that most American consumer behavior is driven by pure economics, it has also been true that Americans will buy big gas guzzlers unless and until they can’t afford the largesse of that vehicle’s gas consumption. And the same is true, that many Americans will search out cars in the market that meet their budget-conscious needs too, as has been evident in the past decades as Japanese imports with higher fuel economy, better safety records and less maintenance costs began a strong foothold into the American market. Meanwhile, most American car manufacturers fought innovation and regulation, including fighting early versions of electric cars. I’m old enough to remember that was the first time that Detroit needed a taxpayer bailout.

So please pay close attention to the “Detroit 3” asking the president to reopen the new 2016 “Midterm CAFE Standards” and whether their reasons are to benefit the consumer or themselves. And although the 2025 model year target of 54.5 miles per gallon may seem tough, there is no doubt that the increasing fuel efficiency standards are a direct benefit to your families’ bottom line, to our collective energy and national security and to the arc of American ingenuity.

Lets’ not take our foot off the accelerator now.

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: Storm clouds and a silver lining?

By Jim Roth, Director and Chair of the Firm’s Clean Energy Practice Group. This column was originally published in The Journal Record on March 13, 2017.


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

Storm clouds and a silver lining?

As Oklahoma’s oil and gas industry looks ahead, cautiously optimistic into 2017 and beyond, it seems there are reasons to be hopeful and still causes for worry. That dual reality has played out already in 2017 and especially within the past week.

As the Oklahoma state budget indicates, the oil and gas patch has been going through a very rough patch for the past few years. And as a country, American oil and gas production has remained steady, albeit more productive than the market can bear. Hence the oversupply and low-price reality exacerbating the industry these past few years.

Where have we been since the high of $110 per barrel of oil in 2014? Well it’s been a rocky road for sure. And 2016 can perfectly illustrate that bumpy journey.

At the beginning of 2016, the U.S. benchmark saw a nearly 13-year low with prices per barrel of oil falling below $27. Yes, that’s less than a quarter of the 2014 price high and no wonder many companies got slammed hard, including bankruptcies and reorganizations to survive. Then a rebound began, due in large part to optimism around production control announced by OPEC and its collaborators, as the rebound more than doubled the price of crude. 2016 saw the U.S. benchmark futures achieve the biggest annual gain in seven years, including an 8-percent gain in December alone.

And as the industry rolled into 2017, hope continued to build that the low commodity price storm clouds may be dissipating. Rig activity is building, some companies are announcing expanded capital programs and cautious smiles are beginning to reappear.

Volatility seemed to be leveling out, as oil traded within a $4 range over the past two months, creating the smoothest period for oil prices since 2014. But then a thunderhead popped up quickly and rained some doubt again for the industry, and prices tumbled for oil and for publicly traded companies directly involved.

Last Wednesday and Thursday saw oil futures fall over 7 percent in two days, sliding back under $50 per barrel as worries continue. Storage data revealed near record highs and suggestions that a rush to produce could further flood the market and continue downward pressure on prices. And an industry desperately in need of balance is being reminded that most factors impacting their industry are beyond their control.

What is more likely within the industry’s control, the cost of doing business, may be the silver lining in all of this stormy experience. Here’s what I mean.

Oklahoma producers have become all too familiar with feast and famine over the past decades. And the smartest amongst us seek out cost efficiencies through the drill bit at times such as these. Through deployed innovation and cost savings implemented structurally in the production processes, many Oklahoma producers are learning to create more with less. And as the industry picks up, with labor demands tightening, land lease prices increasing and energy service companies in growing demand, the exploration and production companies that have implemented price discipline in their own internal practices should weather any coming volatility. It is estimated that about one-third of a well’s costs are on the drilling side, with the remaining two-thirds being for the well’s completion costs. Oklahoma’s companies and Oklahoma’s SCOOP, STACK and the NW STACK plays are going to be laboratories for whether innovative producers can not only compete, but succeed in the new normal of external price pressures.

All of Oklahoma needs them to succeed.

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.

Mary Holloway Richard sourced in article investigating hospital merger

Mary Holloway 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.

Mary Holloway Richard, Phillips Murrah Of Counsel Attorney and leader of the Firm’s Health Care Practice, was quoted in a Journal Record article by Sarah Terry-Cobo regarding an attempted merger by OU Medical System and how best to financially achieve that mission.

Read Richard’s comments from the article below:

OKLAHOMA CITY – When it comes to complicated relationships, sometimes it just takes the right partner. After a failed hospital merger was announced Monday, OU Medical System could still find its better half.

But making that match probably won’t be easy, said industry observers. Health care attorney Mary Holloway Richard said a potential partner needs the business expertise as well as the financial backing to purchase a large teaching hospital.

Richard said teaching hospitals have historically had higher costs than non-academic hospitals.

A potential partner has to evaluate the economic feasibility, regardless of whether parties are considering an outright acquisition or a joint venture, she said.

“Will it fit in with your overall business model?” Richard said. “(A teaching hospital) is a complex system, so how you incorporate that complex system into an existing system requires mastery of both the business model and the financial feasibility, as well as recognition of the compliance issues at play.”

Read the full article at the Journal Record.

Doing business in multiple states

Gavel to Gavel appears in The Journal Record. This column was originally published in The Journal Record on March 9, 2017.


Kendra M. Norman represents individuals and businesses in a broad range of transactional matters.

By Phillips Murrah Attorney Kendra M. Norman

One of the first considerations in forming a business entity is where to organize or incorporate. However, there is another important and frequently overlooked inquiry, which is where else to qualify that entity to do business.

If a business entity functions outside of the state in which it was formed, it may need to qualify to do business in that foreign state. Each state has different requirements for what constitutes doing business for this purpose. For many states, certain activities within that state, without more, do not require qualification. These activities usually include maintaining bank accounts, carrying on activities concerning internal corporate affairs, acquiring indebtedness, owning real or personal property, or conducting isolated transactions completed in 30 days.

Thus, the threshold for requiring businesses to qualify is relatively high. While these acts may not constitute doing business for qualification purposes by themselves, the general standard for qualification is based on the cumulative effect of all of the activities performed in the state in question. Generally, to be required to qualify, the foreign entity must transact a substantial part of its ordinary business within the state. To constitute ordinary business, activities must be indispensable to the business rather than simply incidental.

Failure to qualify can result in many penalties. Entities can be barred from access to the courts in states where they are unqualified, including Oklahoma. This can mean they are unable to enforce contracts entered into in these states. Unqualified entities, and individuals acting on their behalf, can be fined by foreign states in which they do business, including Oklahoma, where there is a statutory provision imposing fines. These fines can include backward-looking fees and franchise taxes to the state for the period in which the entity has operated while unqualified in the state, as well as a fine per transaction while unqualified.

The best course of action when faced with these issues is to determine where a business entity will transact substantial business and examine the specific statutory and case law of that state to determine if qualification is required.

Practitioners should keep in mind that what constitutes doing business for qualification purposes may not be the same threshold for what constitutes doing business for taxation and service of process purposes in some states, including Oklahoma.

Kendra M. Norman is an attorney at Phillips Murrah, where she represents individuals and businesses in a broad range of transactional matters.

Oklahoma Bankers Association marks increase in check, wire fraud attempts

Oklahoma Bankers Association recently issued a Fraud Alert, a notice seldom sent to its members. The notice brings to light increases in two types of fraud at banks: Check fraud and wire fraud.

Regarding check fraud attempts, banks have reported receiving “account funds availability” verification calls on existing accounts, followed by a call from the “customer” who claims to be sending someone to the bank to cash a large check.

OBA said that the surge in check fraud is due to “social engineering,” defined as using deception to manipulate individuals into divulging confidential or personal information. They added that recent fraud attempts have been valued in the tens of thousands of dollars.

“This is a regular issue we’re seeing, and I would be most apprehensive about social engineering,” said Don Pape, an Of Counsel Attorney at Phillips Murrah who specializes in banking law. “There are people who will, in essence, test the security of large companies and will manage to move into the company. Employees need to be cautious when receiving requests from people they don’t know well, and be diligent when verifying wire transfer requests.”

OBA suggests banks consider having a manager involved in the process of dispensing large amounts of cash. Managers should follow up calls from the alleged “customer” with a call to the customer number on file. This procedure is similar to that of wire fraud protection procedures, they said.

Hackers are watching

A surge of wire fraud activity has also been linked to social engineering, whereas cyber criminals hack into business emails for extended periods of time and mimic emails requesting wire transfers within a company. They are able to seem more authentic by replicating language patterns and having knowledge of a customer’s daily activities.

“The problem comes in when banks call back a customer to verify a transfer and ‘Partner A’ confirms based on what ‘Partner B’ says without realizing ‘Partner B’ was actually the person hacking the account and making the fraudulent request,” said Elaine Dodd, Executive Vice President of OBA’s Fraud Division. “Hackers previously observed email activity for 229 days. We’ve seen an increase to 300 days for hackers to gather information about a victim’s family or daily appointments in order to send fraudulent emails at the most opportune time, likely when the victim is off work or on vacation.”

There is an increased amount of information fraudsters have on customers, and this is contributed to any number of recent massive data breaches, Dodd said.

“Really scrutinize where a wire fund request email comes from,” she advised. “If something feels wrong, little details can clarify a source.”

For example, she recommended that the recipient should closely check the sender’s email address to be sure it’s authentic.

“Usually, the change is nothing substantial, perhaps a period or letter,” She added. “The best thing to do to be safe is pick up the phone and call the person requesting wire.”

OBA provides retail training on this topic to help bankers better inform and protect customers.

“Stay safe out there,” Dodd said. “I encourage anyone who has working knowledge of these types of frauds to share in their social circle, business and social. We could all be at risk.”

Attorneys Hilary Hudson, Kendra Norman inducted into Order of the Coif

Kendra M. Norman and Hilary A. Hudson after being inducted into Order of the Coif.

Phillips Murrah Attorneys Hilary A. Hudson and Kendra M. Norman were inducted into the Order of the Coif at the University of Oklahoma College of Law’s Order of the Owl Dinner on March 6 at the Oklahoma Memorial Union.

“I’m very proud to be selected as a member of the Oklahoma Chapter of the Order of the Coif. It is such an honor, and I’m very excited about this achievement,” Norman said. “Being selected as a member of the Order of the Coif means always knowing that I did my best throughout law school.”

The Order of the Coif is a national law school honorary society founded to encourage scholarship and to advance the ethical standards of the profession. The Oklahoma chapter, chartered in 1925, may elect each fall from the graduating class — which includes all those graduating during the fall, spring and summer terms — those graduates who rank in the top 10 percent academically.

Each candidate elected to membership must be thought worthy of the honor in the opinion of the voting members of the Oklahoma chapter, according to the OU College of Law’s website.

“It’s a terrific honor to be inducted into The Order of the Coif,” Hudson said. “Law school was a rewarding experience, but it was also grueling.

“When you begin law school, you have no idea how your grades will turn out, so you just work as hard as you can and hope for the best. It’s great to have something like membership with The Order of the Coif to look to and remember what I accomplished. The induction is also a perfect opportunity to spend time with professors and peers and hear about the wonderful things the other inductees are accomplishing as new attorneys.”

Learn more about the Order of the Owl event here.

Firm selects February Employee of the Month

Curt Bauer

Curt Bauer, File Room Manager, is Phillips Murrah’s Employee of the Month for February 2017.

“I don’t work or do any of what I do to get Employee of the Month or to get recognized. I do it because it is my job and I believe in what I do,” he said. “With that said, it is always nice to be recognized by your peers, and it helps a lot toward keeping up the daily grind.

“I love this firm’s progressive, proactive thinking, and the fact that we, as a group, always want to be better this year than we were last year. It is an honor to work here!”

The Employee of the Month is selected anonymously by Phillips Murrah staff on merits of teamwork and overall contributions to the Firm.

“Curt is so very thorough and conscientious that you know you are in good hands when you ask him to do something,” Executive Director Michelle Munda said. “He’s extremely dedicated to his job and the Firm, and makes sure we know that he will do whatever is required in every situation, whether it’s something really big or really small.  We are very lucky to have him working here!”


Phillips Murrah is the only law firm recognized as an Oklahoma Top Work Place by The Oklahoman/WorkplaceDynamics. Our Firm strives to recognize and reward our employees for excellence. Each Employee of the Month is chosen by a monthly survey of peers.

Phillips Murrah supports Big Brothers Big Sisters in 2017 campaigns

The beginning of Spring marks the beginning of Phillips Murrah’s sponsorship campaign for Big Brother Big Sister of Oklahoma’s Bowl for Kids’ Sake event.

The Firm kicked off its annual campaign with a Thunder ticket raffle, garnering $1,600 in donations, as the organization’s Taste of OKC event concluded Feb. 4.

Phillips Murrah served as a table sponsor for Taste of OKC, one of the marquee fundraising events for BBBSOK, at the Chevy Bricktown Events Center. The night was filled with great food from top restaurants in Oklahoma, a silent and a live auction, and then capped off with dancing to the music of My So Called Band.

Over 550 guests attended the event, which exceeded the goals and expectations the organization set, said Byrona J. Maule, Phillips Murrah Director and Member of the Board of Directors for BBBSOK.

“Every year the Taste of OKC gets better and better – in fact, the last two years the event has sold out,” she said. “Between being a table sponsor and auctioning items that guests of Phillips Murrah purchased, Phillips Murrah contributed over $9,000 to the success of the event – enough to make and support six matches for a year!”

BBBS is the nation’s largest donor and volunteer supported mentoring network striving to make meaningful, monitored matches between adult volunteers (“Bigs”) and children (“Littles”), ages 6 through 18, in communities across the country.

“I’ve been involved with BBBS for over 25 years, and I’ve had four matches that spanned that time,” Maule said. “The time I have spent with my Littles has been the most rewarding and challenging times in my life.

“I’ve helped these Littles learn their multiplication tables, write essays, develop artistic and musical talents, and experience things for the first time like an OU football game, a Thunder basketball game, flying, and so many other firsts.  There is no way to put a value on this time, because the time you spend with your Little is invaluable.”

For more information on Big Brothers Big Sisters, click here.

Roth: Right-wing social engineering?

By Jim Roth, Director and Chair of the Firm’s Clean Energy Practice Group. This column was originally published in The Journal Record on February 27, 2017.


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

Right-wing social engineering?

Not long ago American conservatives professed free-market solutions and an economy without job-killing regulations that pick winners and losers, yet those principles seem to be a thing of the past when it comes to clean energy these days.

To be fair, the American economy does not really meet the actual definition of free market, which according to Dictionary.com is “An economic system in which prices and wages are determined by unrestricted competition between businesses, without government regulation or fear of monopolies.”

Also, perhaps because much of America’s electricity sector is highly regulated, either as a monopoly or something very close to it, but whatever the reason, 2017 is seeing an unprecedented level of activity attempting to interfere with energy markets.

All across America conservative lawmakers have been introducing a number of bills and legislative efforts to block, tax, halt, hobble and hurt the economics of and markets for clean energy. Here is just a sampling from a few states in 2017:

Wyoming – Nine legislators (two senators and seven representatives, all Republicans, mostly from coal-producing counties) have introduced a new measure that would forbid Wyoming utilities from acquiring any electricity from wind or solar energy projects by 2019, regardless of the fact that those resources are becoming cheaper than traditional fossil fuel. The bill would levy steep fines on utilities if they continue to provide “non-eligible clean energy” for their electric service.

By the way, Wyoming generates and consumes mostly coal-powered electricity, which accounted for roughly 90 percent of its electricity in 2016.

North Dakota – Republican Sen. Dwight Cook introduced a measure (Senate Bill 2314) to impose a moratorium on wind energy development through 2019 and he used a procedural maneuver called a hog-house amendment that erases an existing bill and rewrites it so that the public can’t comment on the proposal because hearings already have been held on the original measure. And even though this tactic may stink to high heaven, a North Dakota Senate committee approved it this week in a 4-3 vote. North Dakota is a coal state and is home to seven coal plants, where it exports almost 70 percent of its total electricity generation to neighboring states.

Oklahoma – Republican legislators have introduced more than 60 bills about wind energy and the governor’s State of the State budget address included a proposed new tax on wind energy, which would be the highest in the nation at $5 per megawatt-hour of electricity on every customer’s utility bill. Granted, Oklahoma has a severe budget dilemma, but this electricity tax idea noticeably does not include any similar tax provisions for out-of-state coal or in-state natural gas, which are still the largest parts of Oklahoma’s electricity portfolio.

So what is going on? Why have conservative policymakers seemingly abandoned their core economic free-market philosophies to push regulations designed to put the hurt on clean energy?

It’s especially odd when you read the 2016 GOP platform on regulation, which states:

Regulation: The Quiet Tyranny – Over-regulation is the quiet tyranny of the “Nanny State.” It hamstrings American businesses and hobbles economic growth.

A possible answer? Coal energy is on the ropes and its sympathizers know that desperate times may call for desperate measures. Nevertheless, no matter how many conservative nannies pop up across the country to push to save coal, the power of economics, like water, will flow to their logical outcome over time.

And for us Oklahomans, that is actually a good thing, because clean-burning, (overly) abundant (and cheap) domestic natural gas is the greatest, single market effect pushing coal to the ash heap on energy history. It will not be immediate, so please do not celebrate or panic, but it is real and it is here to stay. Free-market or not.

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.

Russell Westbrook has his own room at the Hawkins’ house

Brenda Hawkins Westbrook Fan

Click the photo to see Jenni Carlson’s story about Brenda Hawkins.

Russel Westbrook has his own room at the home of Phillips Murrah Director Terry Hawkins, who leads the Firm’s Public Finance Practice.

From the story in the Sunday Oklahoman:

There’s no bigger Russ fanatic.

(Brenda Hawkins) has replicas of every jersey the Thunder superstar has worn. She has copies of dozens of magazine covers he’s graced, including one from, of all things, a rural electric cooperative. She has bobbleheads and fatheads, paintings and posters.

Standing in “The Russell Room” in her Mesta Park home, she admits her love is extreme.

This past Sunday (2/19/17), The Oklahoman ran an excellent story about Terry’s wife, Brenda, who is a avid admirer of Westbrook and collector of all kinds of Westbrook-related memorabilia.

The touching account, written by sports columnist Jenni Carlson, explains the context of Brenda’s collection and admiration of the Oklahoma City Thunder’s star player. It is a story of strength and overcoming.

Rather than stepping on the fine prose of Ms. Carlson, HERE is a link to the story. It is worth the read!

 

Roth: Florida taxes oranges?

By Jim Roth, Director and Chair of the Firm’s Clean Energy Practice Group. This column was originally published in The Journal Record on February 13, 2017.


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

Florida taxes oranges?

If you were to read a headline that the state of Florida was looking to add a 25-percent tax to the price of oranges, you might scratch your head and wonder why they would intentionally hurt one of their largest industries. In Florida, agriculture is second only to tourism.

Such was my reaction when Oklahoma state leaders unveiled an idea this past week to tax their way out of a recurring budget shortfall dilemma by proposing a new tax on Oklahoma’s wind energy, thereby raising the cost of every single Oklahoman’s monthly utility bill. Wind energy accounted for roughly 20 percent of the state’s total electricity last year, so you can do the math about an increase to 20 percent of your electricity fuel bill.

The proposed $5 per megawatt-hour of wind power generation amounts to an approximate 25-percent increase to the cost of wind power, which is now being developed and sold in Oklahoma at around $20 per Mwh.

It’s also interesting to note that only one other state in America has a tax on wind production and Wyoming, where coal is king, has a $1-per-megawatt-hour tax, a whole one-fifth of Oklahoma’s proposed new tax rate.

Oklahoma has enormous energy blessings in the form of natural gas, wind and oil. Recently, the U.S. Energy Information Administration updated its state rankings and has Oklahoma third in the country in natural gas production and fifth in crude oil production. Oklahoma is now also ranked third in wind power with 6,645 megawatts of wind capacity as of the end of 2016, just surpassing California and now trailing only Texas (20,321 MWs) and Iowa (6,917 MWs).

It’s true what Oscar Hammerstein wrote about Oklahoma in our fabled state song, “…where the wind comes sweeping down the plain, and the wavin’ wheat can sure smell sweet,” yet we probably aren’t “doin’ fine” if we are so desperate to tax one of our leading industries, 25 percent to just make budget.

There’s a better way, if you think there is a necessity to push new taxes on electricity generation. There’s an Oklahoma way. Develop a tax approach that makes pollution more expensive, not Oklahoma’s clean energy. And this is an approach being pitched nationally by a large group of prominent, conservative Republicans, who believe it’s time to tax carbon, a real villain, rather than American energy itself.

Former Secretaries of State James Baker and George Schultz, former Treasury Secretary Hank Paulson, business leaders like Rob Walton, former chairman on Wal-Mart, and many others were in D.C. this month meeting with Vice President Mike Pence and other leaders to detail their blueprint for a $40-per-metric-ton tax on carbon dioxide pollution, with the price escalating over time. And yet the policy would actually protect low-income Americans from higher energy bills, unlike Oklahoma’s proposed wind electricity tax. Under Baker’s proposal, the projected $200 billion to $300 billion in annual revenue from the carbon tax would be distributed to households, by quarterly checks, from the Social Security Administration. It is estimated that families of four would receive about $2,000 a year in payments to them, not from them.

And through it all America would be transitioning, even more quickly to a cleaner energy economy and leading the world.

Oklahoma could lead also by a similar approach, rather than hobbling one of its leading industries, with large investments in the state, by targeting wind. We should target negative aspects of human behavior; such is the justification for increasing cigarette taxes, right?

An Oklahoma pollution tax would make winners out of our state’s cleaner-burning natural gas and wind industries, would drive greater production and demand for both and would in turn reduce health care costs to families and businesses by reducing harmful pollutants in our air. We would send less hard-earned Oklahoma money to Wyoming for imported coal, where we are buying their schoolbooks instead of our own. We would in turn incentivize Oklahoma’s energy future by creating a growing market, not a shrinking one.

“Florida taxes fattening fried potatoes” makes more sense to me than “Oklahoma taxes its own wind.”

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: Make American streams dirty again?

By Jim Roth, Director and Chair of the Firm’s Clean Energy Practice Group. This column was originally published in The Journal Record on February 6, 2017.


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

Make American streams dirty again?

If you were asked whether you favored clean streams and waterways for America, you would probably agree. But if the question were framed more political, such as do you favor the repeal of job-killing regulations that have impacted coal miners, would your opinion change?

Well either way, Congress has begun, as one of its very first acts this year, to repeal, perhaps forever, a new regulation to keep coal companies from dumping their mining waste into America’s waterways. It was approved within the last months under the Obama administration and so by U.S. law it is subject to revisit by Congress under the “1996 Congressional Review Act.” The Congressional Review Act allows for the repeal of recently finalized regulations if the House and the Senate, by simple majorities, and the new president agrees. And strangely enough, once repealed under the CRA a regulation, or anything similar to it, cannot ever be approved in the future. But enough about process and how it can happen, it seems to me that America should be more focused on if it should happen. Here’s why.

The Stream Protection Rule was finalized by the Department of Interior on Dec. 19 after years of development and public input. According to the department, the rule is intended to protect 6,000 miles of streams and 52,000 acres of American forest by creating a buffer zone between mines and nearby waterways, to protect drinking water and to require coal companies to restore streams and return mined areas to the conditions before the mining activity. Coal’s supporters have been vehemently opposed to this rule, describing it as unnecessary and a duplication of the existing Clean Water Act and they are taking no chances to get it repealed, while acting like the repeal alone could help prop up a declining coal business.

But the reality is that America’s electric sector is moving beyond its former coal-dominant days, towards cleaner-burning natural gas and renewables. Across America, over 300 coal plants have been retired over the last decade alone and more will continue to come offline. And that’s good news for states like Oklahoma, which are blessed with more natural gas and renewable potential than we could ever use ourselves. It’s also great news for anyone with lungs, because the reduction in air pollutants has been significant as older polluting coal plants go offline.

The cost for losing the protections from the Stream Protection Rule is great and irreversible. They are so, because the rule is focused on a practice of mining that involves blowing the tops off of America’s mountains and dumping the mining rock, soil and debris, or overburden, off the mountain and into nearby waterways, damning them up and changing the water quality and ecosystems forever.

Mountaintop mining is a method of coal mining used mostly in the Appalachian Mountains in the eastern United States, where explosives are used to blow up about 400 vertical feet of the top ridges of mountains to reveal coal seams underneath. Then those seams are mined and this higher-sulfur coal is shipped to be burned mostly in the states around Appalachia.

It’s not just about jobs. We Americans should want all Americans to have the opportunity for decent jobs that afford healthy, dignified lives for the workers and their families. And we should want today’s working generations and the coming generations to be in a growing pipeline of jobs that will sustain them throughout their working life. We should resist trying to prop up a fading, and sometimes dangerous, industry when we can help those workers transition to cleaner industries that don’t pollute our rivers, streams and bodies. We can also commit ourselves to protecting the amazing landscapes and purple mountain majesties that bless much of our country’s land. America has that ability if it looks forward, rather than back.

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.

Firm selects January Employee of the Month

Sherree Williams

Sherree Williams, Legal Assistant, is Phillips Murrah’s Employee of the Month for January 2017.

“I am very thankful to my co-workers for choosing me to be Employee of the Month,” she said. ” I am proud to work with wonderful people and for an amazing company.

“It is such an honor, both personally and professionally! I love working here and with my Phillips Murrah family.”

The Employee of the Month is selected anonymously by Phillips Murrah staff on merits of teamwork and overall contributions to the Firm.

“She always gets the work done, regardless of the volume and does not complain about being overworked,” Attorney Gretchen M. Latham said.


Phillips Murrah is the only law firm recognized as an Oklahoma Top Work Place by The Oklahoman/WorkplaceDynamics. Our Firm strives to recognize and reward our employees for excellence. Each Employee of the Month is chosen by a monthly survey of peers.

Roth: We need more energy markets, not fewer

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 30, 2017.


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

We need more energy markets, not fewer

Oklahoma’s energy blessings far exceed our own state’s needs and demand, which is why we have long sought markets beyond our borders.

We typically export our state’s largest commodities, especially natural gas, and we have become optimistic about global markets opening up to help take some of the massive over-supply that the American shale renaissance has helped create. A fight with our neighbors in Mexico is not good for Oklahoma, our economy or the promise of moving past the current recession that has gripped our state.

Since 2009 to now, U.S. pipeline exports of natural gas everywhere have doubled and almost all of that growth has been from exports from the U.S. to Mexico. In fact, since 2015, Mexico accounts for more than one-half of all U.S. exports of natural gas. Daily average pipeline exports now exceed 3.5 billion cubic feet per day, which is 85 percent above the previous five-year-period average, according to the U.S. Energy Information Administration.

Much of Mexico’s growth in natural gas consumption has been attributed to the growth in Mexico’s domestic electricity demand and the fact that Mexico, like the United States, has been choosing cleaner-burning natural gas for its power plants. Northern Mexico is particularly growing and the demand is expected to continue. In fact, Mexico announced in 2015 a five-year plan to significantly increase its pipeline infrastructure with 12 new pipelines over 3,200 miles, to allow for greater importation of American natural gas for its energy needs. As of today, contracts have been awarded on seven of the 12 pipelines, including a 2.6-billion-cubic-feet-per-day capacity pipe from southern Texas to Mexican states along the Gulf of Mexico.

We should want these markets to grow and we should want this infrastructure to access the massive supply available here in America. Those two things can directly benefit Oklahoma and the many producers who call Oklahoma home, regardless of where they produce.

This month USA Today ran an article that described how “six of the eight top oil-pumping states hit recession,” and the article quoted S&P saying about Oklahoma, “even modest economic softness could have prolonged negative effects.”

We already know that our state budget and economy are in peril because of the massive downturn in oil and gas commodity prices, which have led to serious drops in tax revenues. It is suggested that the 2018 budget will be off another 12.6 percent less spending capacity from even this year’s reduced budget.

Now is not the time to play political games with a neighbor and customer that accounts for such significant growth in our ability to export American and Oklahoma energies. Our economy and our national security are both better served by growing foreign markets for American goods.

Or as President Ronald Reagan said on May 16, 1987: “We should be trying to foster the growth of two-way trade, not trying to put up roadblocks, to open foreign markets, not close our own.”

Let’s throw that idea up against the proverbial “wall” and see what sticks today.

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.

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.

Director Jim Roth teaches OCU Energy Law seminar for Spring 2017

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.

Jim Roth, Director and Chair of Phillips Murrah’s Clean Energy Practice Group, began a new role at Oklahoma City University’s School of Law last week.

“Dean Valerie Couch reached out to me and asked if I would be interested in their inaugural ‘Distinguished Practitioner in Residence’ effort for this Spring Semester,” Roth said.

Roth will teach a seminar class on Energy Law and Regulation and initiate an Energy Roundtable for the Spring 2017 semester.

“My ultimate hope is to inspire law students and young lawyers to pursue a career in the dynamic field of energy, or at least encourage them to have a deeper understanding of all the issues and cross-currents that drive energy in America and beyond,” he said.

For more information about OCU’s School of Law, click here.

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: www.eia.gov/dnav/pet/hist/LeafHandler.ashx?n=PET&s=MCRFPUS1&f=M.

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.