IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION. vs. CIVIL ACTION NO. 4:12-cv-2922 COMPLAINT

Transcription

1 Case 4:12-cv Document 1 Filed in TXSD on 10/01/12 Page 1 of 16 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION CHESAPEAKE EXPLORATION L.L.C. and CHESAPEAKE ENERGY CORPORATION, Plaintiffs, vs. CIVIL ACTION NO. 4:12-cv-2922 GASTAR EXPLORATION, LTD., GASTAR EXPLORATION TEXAS, LP and GASTAR EXPLORATION TEXAS, LLC, Defendants. COMPLAINT TO THE HONORABLE UNITED STATES DISTRICT COURT: Plaintiffs Chesapeake Exploration L.L.C., formerly known as Chesapeake Exploration Limited Partnership, and Chesapeake Energy Corporation (collectively, Chesapeake ) complain of Defendants Gastar Exploration, Ltd., Gastar Exploration Texas, LP, formerly known as First Source Gas, L.P., and Gastar Exploration Texas, LLC, formerly known as Bossier Basin, LLC, as follows: I. PARTIES 1. Plaintiff Chesapeake Exploration L.L.C., formerly known as Chesapeake Exploration Limited Partnership, is an Oklahoma limited liability company that has its principal place of business in Oklahoma City, Oklahoma. The members of Chesapeake Exploration L.L.C. are citizens of Oklahoma.

2 Case 4:12-cv Document 1 Filed in TXSD on 10/01/12 Page 2 of Plaintiff Chesapeake Energy Corporation is an Oklahoma corporation that has its principal place of business in Oklahoma City, Oklahoma. 3. Defendant Gastar Exploration, Ltd. ( Gastar ) is an Alberta (Canada) corporation that has its principal place of business in Houston, Texas. Gastar may be served with process through its registered agent, Corporation Service Company d/b/a CSC-Lawyers Incorporating Service Company, 211 E. 7th Street, Suite 620, Austin, Texas Defendant Gastar Exploration Texas, LP, formerly known as First Source Gas, L.P. ( First Source ), is a Delaware limited partnership that has its principal place of business in Houston, Texas. On information and belief, the partners of Gastar Exploration Texas, LP are all citizens of Delaware, Michigan and/or Texas. Gastar Exploration Texas, LP may be served with process through its registered agent Corporation Service Company d/b/a CSC-Lawyers Incorporating Service Company, 211 E. 7th Street, Suite 620, Austin, Texas Defendant Gastar Exploration Texas, LLC, formerly known as Bossier Basin, LLC, is the general partner of First Source and is a Delaware limited liability company that has its principal place of business in Houston, Texas. On information and belief, the members of Gastar Exploration Texas, LLC are all citizens of Delaware, Michigan and/or Texas. Gastar Exploration Texas, LLC may be served with process through its registered agent Corporation Service Company d/b/a CSC-Lawyers Incorporating Service Company, 211 E. 7th Street, Suite 620, Austin, Texas

3 Case 4:12-cv Document 1 Filed in TXSD on 10/01/12 Page 3 of 16 II. JURISDICTION AND VENUE 6. This Court has subject matter jurisdiction under 28 U.S.C because Plaintiffs and Defendants are citizens of different states and the amount in controversy exceeds $75,000, excluding interest and costs. This dispute is subject to an arbitration agreement among the parties, and the Court may issue an order compelling arbitration of this dispute upon the motion of Plaintiffs and/or Defendants. Plaintiffs expressly retain their right to seek arbitration of this dispute, and do not intend the filing of this Complaint to in any way be construed as a waiver of that right. 7. Venue is proper in this District under 28 U.S.C because Defendants reside in this District and because a substantial part of the events or omissions giving rise to this case occurred in this District. III. SUMMARY OF CLAIM 8. This dispute involves contracts that were entered into based on a mutual mistake of fact. Plaintiffs seek rescission of the agreements that were executed based on that mistake, and to have the parties returned to status quo ante. Rescission is also appropriate because the consideration for those agreements failed. In the alternative, Plaintiffs seek restitution of the amounts that Defendants unjustly received under those agreements, because the agreements were thwarted by mutual mistake and failure of consideration, rendered impossible or impracticable to perform, and/or frustrated before Plaintiffs were able to receive the benefits that they were promised. 3

4 Case 4:12-cv Document 1 Filed in TXSD on 10/01/12 Page 4 of 16 IV. FACTS 9. This dispute involves an oil and gas field located in Leon and Robertson Counties, Texas known as the Hilltop Prospect. As of early 2005, Defendant Gastar (and its affiliates and subsidiaries) owned leasehold working interests in the Hilltop Prospect covering approximately 54,000 gross acres and 38,000 net acres. Gastar had begun to develop this prospect, drilling six (6) wells to various deep formations, resulting in the production of significant amounts of natural gas. At that time, Gastar estimated that the Hilltop Prospect could accommodate up to 200 productive wells. 10. Although the results from Gastar s initial wells were promising, the cost of Gastar single-handedly developing the entire prospect was prohibitive, as the cost of drilling and completing a single well averaged $10 million or more. Therefore, Gastar decided it would be advantageous to seek an industry partner who could share the cost of developing the Hilltop Prospect. 11. In June 2005, Chesapeake was approached by an investment banker working on Gastar s behalf to see if it would be interested in acquiring a portion of Gastar s interest in the Hilltop Prospect. Chesapeake was an attractive business target to Gastar, because Chesapeake was well-known as an active driller that could provide a deep source of funds for Gastar to develop the prospect and add credibility to Gastar s efforts. 12. After a period of evaluation and negotiation, on September 16, 2005, Chesapeake entered into a letter of intent with Gastar under which Chesapeake agreed to: (1) purchase one-third (1/3) of Gastar s interest in the Hilltop Prospect; (2) purchase 4

5 Case 4:12-cv Document 1 Filed in TXSD on 10/01/12 Page 5 of % of the outstanding shares of Gastar common stock; and (3) enter into an exploration and development agreement with Gastar covering certain counties in Texas. The three undertakings described in the letter of intent were interdependent and essential parts of an integrated transaction, all three of which, in the words of Russell Porter, President and Chief Executive Officer of Gastar, had to be closed simultaneously or none would be closed. 13. After completing due diligence on this transaction, Gastar and First Source (an indirectly wholly owned subsidiary of Gastar) on the one hand, and Chesapeake Exploration Limited Partnership (an indirectly wholly owned subsidiary of Chesapeake Energy Corporation) on the other hand, executed effective November 4, 2005: (1) a Purchase and Sale Agreement and Exploration and Development Agreement (hereinafter, Purchase and Sale Agreement ); and (2) an Exploration and Development Agreement. Also effective November 4, 2005, Gastar and Chesapeake Energy Corporation executed: (1) a Common Share Purchase Agreement; and (2) a Registration Rights Agreement. 14. The Purchase and Sale Agreement, Exploration and Development Agreement, Common Share Purchase Agreement, and Registration Rights Agreement (collectively, the Related Agreements ) were interdependent and essential parts of an integrated transaction. The Purchase and Sale Agreement provides that the consideration attributable to the matters covered in the Related Agreements was not derived separately, but was negotiated as a whole, and that the integrated transaction contemplated by the Related Agreements would not be consummated without each of the matters covered by 5

6 Case 4:12-cv Document 1 Filed in TXSD on 10/01/12 Page 6 of 16 the Related Agreements being completed. The Related Agreements were, in the words of Mr. Porter, all one transaction, all one lump sum. 15. When the Related Agreements were executed, Chesapeake, Gastar and First Source were aware that a third party, Navasota Resources, L.P. ( Navasota ), had made a claim to a right of first refusal on the Hilltop Prospect interests that Gastar/First Source was selling to Chesapeake. However, based on considerable diligence, Chesapeake, Gastar and First Source all believed Gastar/First Source had certain ownership rights related to the Hilltop Prospect properties, including the right to convey to Chesapeake those interests that were the subject of the letter of intent, despite Navasota s claim. Thus, the parties closed the integrated transaction contemplated by the Related Agreements, and Chesapeake paid: (1) $5,626,811 to Gastar/First Source for the Hilltop Prospect properties, and (2) $76,031,654 to Gastar for the purchase of 27,151,641 shares of Gastar common stock. 16. The parties agreed that Navasota s claim would not constitute a title defect for the purpose of this transaction. The parties also agreed that Chesapeake would convey the leasehold interests to Navasota in the event same was required by a final judgment or settlement of a lawsuit Navasota had filed. However, Chesapeake did not agree to waive its rights to rescind the transaction or otherwise seek restitution in such an event. 17. After closing on the Hilltop Prospect interests, the interests were operated under a Joint Operating Agreement that designated First Source as operator and gave First Source authority over drilling and other activities in the Hilltop Prospect. 6

7 Case 4:12-cv Document 1 Filed in TXSD on 10/01/12 Page 7 of 16 Notwithstanding other provisions of the Joint Operating Agreement, the Purchase and Sale and Agreement provided that Chesapeake was required to participate to casing point in the first six (6) wells proposed by Gastar/First Source (the Obligatory Wells ), and would carry Gastar/First Source on those wells by bearing 44.44% (rather than its 33.33% proportionate share) of the costs through casing point on the Obligatory Wells. As a result, Chesapeake paid Gastar/First Source $20,465,841 for the cost of drilling the Obligatory Wells through casing point. 18. After drilling the six (6) Obligatory Wells to casing point, Gastar/First Source decided to complete these wells, with Chesapeake being assessed its proportionate share of the costs. Gastar/First Source then proposed thirteen (13) additional wells, twelve (12) of which were drilled and completed (the Subsequent Wells ). As a result of these operations proposed by Gastar/First Source, between January 2006 and December 2008 Chesapeake paid the following amounts to Gastar/First Source: (1) $3,803,397 to obtain extensions and renewals of oil and gas leases on the Hilltop Prospect properties; and (2) $26,806,068 for completing and operating the Obligatory Wells and for drilling, completing and operating the Subsequent Wells (net of credit for certain revenues applied against certain expenses). After these wells went into production, Chesapeake received $5,849,297 in revenue payments from Gastar/First Source for gas sold from the Obligatory Wells and the Subsequent Wells. 19. While these wells were being drilled, Navasota was pursuing a lawsuit against Gastar/First Source and Chesapeake in which it claimed that the Hilltop Prospect interests that Gastar/First Source sold to Chesapeake should have been sold to Navasota. 7

8 Case 4:12-cv Document 1 Filed in TXSD on 10/01/12 Page 8 of 16 Navasota s claims were dismissed by the district court in Leon County. But, on January 9, 2008, the Texas court of appeals held that Navasota had validly accepted a right of first refusal on the Hilltop Prospect interests that Gastar/First Source sold to Chesapeake, and the court ordered that the interests be sold to Navasota instead. 20. Neither Gastar, First Source, nor Chesapeake agreed with the court of appeals decision. All parties continued to believe Gastar had all rights of ownership in the Hilltop Prospect leasehold interests at the time Gastar conveyed 1/3 of those interests to Chesapeake, and the parties petitioned for review of the court of appeals decision. 21. While their petitions for review were pending, Chesapeake requested that Gastar/First Source seek a commitment from Navasota that Navasota would pay for any proposed operations in the Hilltop Prospect in the event that Chesapeake, Gastar and First Source were mistaken as to Gastar/First Source s ownership rights at the time Gastar/First Source conveyed the now-disputed interests to Chesapeake. Despite not seeking such a commitment from Navasota, Gastar/First Source continued to propose operations in the Hilltop Prospect, and deducted the costs associated with the disputed 1/3 working interest from the proceeds of gas sales from the wells that Chesapeake had already paid for. 22. On January 9, 2009, the Texas Supreme Court denied the parties petition for review of the court of appeals decision, and on April 17, 2009, a motion for rehearing was denied. Therefore, in accordance with the court of appeals mandate, Chesapeake was required to convey to Navasota the Hilltop Prospect interests it received from Gastar/First Source. In return, Chesapeake received from Navasota payments of 8

9 Case 4:12-cv Document 1 Filed in TXSD on 10/01/12 Page 9 of 16 only $5,009,932 (the cost of the Hilltop Prospect properties at $700 per acre) and $20,465,841 (44.44% of the cost of drilling the Obligatory Wells through casing point), but no compensation for the $26,806,068 in costs Chesapeake paid related to the completion and operation of the Obligatory Wells or the drilling, completion, and operation of the Subsequent Wells, nor the $3,803,397 Chesapeake paid Gastar/First Source to obtain extensions and renewals of oil and gas leases on the Hilltop Prospect properties. 23. On August 28, 2009, following the conveyance of the Hilltop Prospect properties to Navasota, Chesapeake served a written notice of rescission on Gastar and First Source, offering to restore Gastar and First Source to status quo ante and to restore to Gastar and First Source the consideration it received from the transaction. Gastar and First Source refused, and continue to refuse, to comply with Chesapeake s notice of rescission After the conveyance of the Hilltop Prospect properties to Navasota, Gastar/First Source failed to require Navasota to elect-in to the wells that had been drilled on the properties that had been partially paid for by Chesapeake. Had Gastar/First Source done so, under the provisions of the Joint Operating Agreement, Navasota would have either been required to reimburse Chesapeake for its costs in the wells (if Navasota chose to elect-in) or Gastar/First Source could have continued to pay the revenue from gas sales from these wells to Chesapeake until payout (if Navasota chose not to elect-in). 1 As a result of Gastar s and First Source s refusal to rescind the agreements, Chesapeake filed a cross-claim against Gastar in a pending lawsuit brought by Navasota against Chesapeake and Gastar/First Source in Leon County regarding the same transaction at issue here. On March 21, 2011, Chesapeake non-suited its cross-claim against Gastar/First Source subject to a tolling agreement between Chesapeake and Gastar/First Source. 9

10 Case 4:12-cv Document 1 Filed in TXSD on 10/01/12 Page 10 of Since Chesapeake s conveyance of the Hilltop Prospect interests to Navasota, Chesapeake has not received any proceeds from the sale of gas from the nineteen (19) wells it paid for. This, despite the fact that these wells would not have been drilled but-for Chesapeake s $68,105,777 direct investment in these wells, and the $76,031,654 Chesapeake provided Gastar in exchange for Gastar common stock. As of today, Gastar/First Source continues to enjoy the financial benefits of these wells, to the exclusion of Chesapeake, and Gastar/First Source has not suffered any damage on account of the parties mutual mistake and/or the court of appeals mandate. In contrast, Chesapeake has been left with almost $25 million in unreimbursed well and lease costs, and no right to any of the future production from the nineteen (19) wells it paid for. herein. Cause of Action: Rescission and Restitution Based on Mutual Mistake and Failure of Consideration 26. Chesapeake adopts and re-alleges each preceding paragraph as if set forth 27. Chesapeake, Gastar and First Source were mutually mistaken as to Gastar s ownership rights with respect to the interests that were the subject of the letter of intent, and that Gastar/First Source had the right to convey those interests to Chesapeake on November 4, This mutual mistake concerned the parties antecedent legal rights with respect to the Hilltop Prospect properties, which under Texas law is a mistake of fact. 28. This mistake occurred despite the exercise of ordinary care by Chesapeake. 10

11 Case 4:12-cv Document 1 Filed in TXSD on 10/01/12 Page 11 of This mutual mistake had a material effect on the agreed exchange of performances under the Related Agreements and the Joint Operating Agreement, in that the object of these agreements was the joint development and production of natural gas and other minerals from the Hilltop Prospect properties. As the parties had expressly recognized, none of the Related Agreements, nor the Joint Operating Agreement, would have been executed if 1/3 of Gastar s interests in the Hilltop Prospect was not conveyed to Chesapeake. 30. As a direct result of this mutual mistake, Chesapeake paid the following amounts under the Related Agreements and the Joint Operating Agreement: (1) $5,626,811 to Gastar/First Source for 1/3 of Gastar s interest in the Hilltop Prospect properties; (2) $76,031,654 to Gastar for 27,151,641 shares of Gastar common stock; (3) $20,465,841 to Gastar/First Source for the cost of drilling the Obligatory Wells; (4) $3,807,397 to Gastar/First Source to obtain extensions and renewals of oil and gas leases on the Hilltop Prospect properties; and (5) $26,806,068 (net) to Gastar/First Source for completing and operating the Obligatory Wells and drilling, completing and operating the Subsequent Wells. 31. Because the object of the Related Agreements and the Joint Operating Agreement was the joint development and production of natural gas and other minerals from the Hilltop Prospect properties, and because the parties expressly agreed that the consideration provided under any one of the agreements provided the consideration for all agreements, the consideration for the Related Agreements and Joint Operating failed on account of Gastar s inability to convey the 1/3 interest in the Hilltop Prospect 11

12 Case 4:12-cv Document 1 Filed in TXSD on 10/01/12 Page 12 of 16 properties to Chesapeake for the expected duration of those agreements. This failure was so complete that, had it been known, the parties would not have entered into the Related Agreements and Joint Operating Agreement. 32. Chesapeake seeks rescission of the Related Agreements and the Joint Operating Agreement based on this mutual mistake and failure of consideration, and is entitled to restitution of the amounts that it paid Gastar/First Source pursuant to these agreements, plus interest. Chesapeake has no other adequate remedy at law and will suffer irreparable harm if these agreements are not rescinded and if the consideration it paid pursuant to these agreements is not returned. 33. Chesapeake offers to restore Gastar/First Source to status quo ante and to restore to Gastar/First Source the following consideration it received with respect to the Related Agreements and the Joint Operating Agreement: (1) $5,009,932 Chesapeake received from Navasota as payment for the Hilltop Prospect properties; (2) $20,465,841 Chesapeake received from Navasota as payment for the cost of drilling the Obligatory Wells; (3) 27,151,641 shares of Gastar common stock Chesapeake received from Gastar 2 ; and (4) $5,849,297 in revenue payments Chesapeake received from Gastar/First Source for gas sold from the Obligatory Wells and the Subsequent Wells. Cause of Action: Restitution Based on Unjust Enrichment 34. Chesapeake adopts and re-alleges each preceding paragraph as if set forth herein. 2 On August 3, 2009, Gastar common stock underwent a 1:5 reverse stock split. As a result of this reverse split, the 27,151,641 shares of Gastar stock that Chesapeake purchased were converted into 5,430,329 shares. 12

13 Case 4:12-cv Document 1 Filed in TXSD on 10/01/12 Page 13 of Chesapeake s continued ownership of an interest in the Hilltop Prospect was the primary object of the Joint Operating Agreement and the Related Agreements. In pursuit of this objective, Chesapeake paid Gastar/First Source the aforementioned $132,737,771 under the Related Agreements and the Joint Operating Agreement. Gastar/First Source used these funds to drill wells and renew/extend leases in the Hilltop Prospect. In return, Chesapeake was to receive its share of the benefits from such wells and leases so long as the Hilltop Prospect continued to produce. 36. However, complete performance of the Joint Operating Agreement and the Related Agreements with respect to Chesapeake s interest in the Hilltop Prospect was impossible, because Chesapeake was required by the court of appeals mandate to convey its interest in the Hilltop Prospect properties to Navasota before Chesapeake was able to realize the benefits it was entitled to under the Joint Operating Agreement and Related Agreements. 37. Additionally, because the object of the Related Agreements and the Joint Operating Agreement was the joint development and production of natural gas and other minerals from the Hilltop Prospect properties, Chesapeake s mandated conveyance frustrated the purpose of those agreements and/or made it impractical for the parties to perform the agreements. 38. As a result, Gastar/First Source has been unjustly enriched at the expense of Chesapeake. Gastar/First Source received over $132 million from Chesapeake to drill wells and renew/extend leases in the Hilltop Prospect. Gastar/First Source has received and continues to receive the benefits of these wells and leases to the exclusion of 13

14 Case 4:12-cv Document 1 Filed in TXSD on 10/01/12 Page 14 of 16 Chesapeake. In contrast, Chesapeake has received only a portion of the benefits it was promised under the agreements. 39. Additionally, Gastar/First Source s decision to not seek a commitment from Navasota that Navasota would pay for wells proposed by Gastar in the event Navasota prevailed in its lawsuit, nor to require that Navasota elect-in to the wells drilled and paid for by Chesapeake after Navasota was conveyed the leasehold interest, deprived Chesapeake of the opportunity to recoup the costs of these wells. As a result, Gastar/First Source has enjoyed the benefit of its 2/3 working interest in these wells that were funded in part by Chesapeake, while shifting the risk of Navasota prevailing in its lawsuit entirely onto Chesapeake. 40. Under Texas law, restitution is appropriate where, as here, the parties agreement is thwarted by mutual mistake or failure of consideration, rendered impossible or impracticable to perform, and/or frustrated. Therefore, Chesapeake seeks restitution of the amounts it paid to Gastar/First Source under the Joint Operating Agreement and the Related Agreements, less the benefits it received under these agreements as of the date Chesapeake was compelled to convey its interest in the Hilltop Prospect to Navasota. Prayer 41. WHEREFORE, Plaintiffs respectfully pray that they be awarded: A. Rescission of the Related Agreements and the Joint Operating Agreement, including: 1. Restoration by Chesapeake to Gastar/First Source of: (1) the $5,009,932 Chesapeake received from Navasota as payment for the Hilltop Prospect properties; (2) the $20,465,841 Chesapeake received from Navasota as payment for the cost 14

15 Case 4:12-cv Document 1 Filed in TXSD on 10/01/12 Page 15 of 16 of drilling the Obligatory Wells; (3) the 27,151,641 shares of Gastar common stock Chesapeake received from Gastar (now 5,430,329 shares after a 1:5 reverse stock split); and (4) the $5,849,297 in revenue payments Chesapeake received from Gastar/First Source for gas sold from the Obligatory Wells and the Subsequent Wells; 2. Restitution by Gastar/First Source to Chesapeake of: (1) the $5,626,811 Chesapeake paid to Gastar/First Source for the Hilltop Prospect properties; (2) the $76,031,654 Chesapeake paid Gastar for the 27,151,641 shares of Gastar common stock; (3) the $20,465,841 Chesapeake paid to Gastar/First Source for the cost of drilling the Obligatory Wells; (4) the $3,807,397 Chesapeake paid to Gastar/First Source to obtain extensions and renewals of oil and gas leases on the Hilltop Prospect properties pursuant; and (5) the $26,806,068 Chesapeake paid to Gastar/First Source for completing and operating the Obligatory Wells and drilling, completing and operating the Subsequent Wells; B. In the alternative, restitution to Chesapeake under the theory of unjust enrichment of the benefits conferred by Chesapeake upon Gastar/First Source under the Joint Operating Agreement and the Related Agreements, in the amounts summarized in subparagraph A above; C. Pre-judgment and post-judgment interest; D. Costs, attorneys fees, and expenses to the fullest extent permitted by law; and E. Such other relief as the Court deems just and equitable. 15

16 Case 4:12-cv Document 1 Filed in TXSD on 10/01/12 Page 16 of 16 Respectfully submitted, By: /s/jesse R. Pierce Jesse R. Pierce State Bar No Federal ID No. 472 PIERCE & O NEILL, LLP 4203 Montrose Boulevard Houston, Texas (713) Direct (713) Main (713) Fax jpierce@pierceoneill.com Attorney in Charge for Plaintiffs Chesapeake Exploration L.L.C and Chesapeake Energy Corporation OF COUNSEL: Scott R. Humphrey Texas Bar No Federal ID No PIERCE & O NEILL, LLP 4203 Montrose Boulevard Houston, Texas (713) Direct (713) Main (713) Fax shumphrey@pierceoneill.com Brian J. Cathey Texas Bar No Federal ID No PIERCE & O NEILL, LLP 4203 Montrose Boulevard Houston, Texas (713) Direct (713) Main (713) Fax bcathey@pierceoneill.com 16