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Government Liable for $99 Million in Breach of Contract Damages Under Indemnification Clause

Client Alert | 1 min read | 07.24.18

On July 18, 2018, the Federal Circuit affirmed the U.S. Court of Federal Claims’ decision in Shell Oil Co., et al. awarding $99.5M to Shell and other oil companies for the government’s breach of World War II-era contracts for high-octane aviation gasoline production (previously discussed here, and here).

The case began when the U.S. and California sued the oil companies under CERCLA for costs of cleaning up acid sludge caused by the gasoline production. After being found liable under CERCLA, the companies filed claims against the government at the COFC for reimbursement of their CERCLA costs under the theory that the government had breached the “Taxes” clauses in their contracts, which, they argued, required the government to pay “any” charges related to gasoline production. In a decision which may encourage other contractors to pursue recovery under similar contract provisions such as “hold harmless” clauses in facilities contracts, and indemnification clauses authorized under Public Law 85-804, the Federal Circuit ruled that the COFC properly determined that the government breached the Taxes clause, and affirmed the award of $99.5M in damages (including nearly $31 million in interest on the companies’ claims).

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Client Alert | 4 min read | 07.02.25

FTC Orders Divestitures in Retail Fuel Outlet Deal and Signals a Return to More Standard Remedy Discussions

Merger consent orders are back at the FTC, and the FTC’s most recent action showcases how the current leadership is analyzing divestiture proposals. Last week, the FTC approved a proposed consent agreement in Alimentation Couche-Tard Inc.’s (ACT) acquisition of retail fuel outlets from Giant Eagle, Inc. that paired standard retail divestitures with a “prior notice” requirement that ACT notify the agency of future acquisitions in certain markets regardless of size. This FTC has signaled greater acceptance of remedies than the prior administration, and this most recent consent puts that on display, with Commissioner Meador providing merging parties guidance on designing effective remedies....