Minimum Competence - Daily Legal News Podcast
Minimum Competence
Legal News for Weds 1/3 - Secret Hydrogen Hub, Bankruptcy and LLC Act Interplay Changes and a Boston Judge Works Remotely in North Carolina

Legal News for Weds 1/3 - Secret Hydrogen Hub, Bankruptcy and LLC Act Interplay Changes and a Boston Judge Works Remotely in North Carolina

In today’s episode we have hydrogen hub plan secrecy, court refuses to strip Delaware LLC interests upon BK filing, and a judge in Boston leads a North Carolina trial remotely.

A judge on a Zoom call from his kitchen, pencil sketch

This Day in Legal History: Happy Birthday Cicero!

On January 3rd, we mark a significant moment in legal history with the birth of the Roman lawyer, Marcus Tullius Cicero, in 106 BC. Cicero, a figure renowned for his oratory and prose style, was not only a lawyer but also a philosopher and politician, playing a pivotal role in the late Roman Republic. His legal career, characterized by his eloquence and deep understanding of Roman law, made him one of the era's most respected and influential lawyers.

Cicero's legal philosophy was deeply entrenched in the concept of natural law, a principle suggesting that certain rights are inherent by virtue of human nature. He believed that law and justice were not a product of human creation, but rather derived from a higher, universal source. This belief laid the groundwork for many modern legal principles that emphasize natural rights and justice.

Cicero's view of natural law was not just philosophical; it had practical implications for how laws should be crafted and interpreted. He argued that human-made laws should reflect the fundamental principles of justice and fairness inherent in natural law. This idea was a significant departure from the notion of legal positivism, which holds that law is defined solely by the edicts of the state or the decrees of rulers. Cicero’s approach advocated for a higher moral standard in legal proceedings, suggesting that laws unjust in their essence were invalid, regardless of their source.

As a statesman, Cicero often found himself entangled in the complex political machinations of the Roman Republic. His commitment to the Republic's ideals often put him at odds with more autocratic figures. His orations, including the famous "Catiline Orations," showcase his skill in using the law and rhetoric as tools to address public policy and political corruption.

Cicero's legal writings, such as "De Legibus" (On the Laws) and "De Re Publica" (On the Republic), offer insight into Roman law and political theory. These works have had a lasting impact on Western legal thought, influencing legal theorists and practitioners for centuries. His ideas contributed significantly to the development of the concept of individual rights and the rule of law, principles that are central to many modern legal systems.

Interestingly, Cicero's career also highlights the dangers faced by legal professionals in politically turbulent times. His outspoken nature and political stances eventually led to his downfall and assassination. Despite this tragic end, his legacy endured, and his works continued to be studied and revered.

Cicero's influence extends beyond the legal realm; he is considered one of the greatest Roman orators and prose stylists. His writings not only provide historical insight into Roman law and governance but also offer timeless wisdom on ethics, duty, and the nature of good and evil.

As we reflect on this day in legal history, Cicero's birth serves as a reminder of the profound impact one individual, born at a pivotal point, can have on the legal profession and the enduring nature of the principles Cicero specifically championed. His life and work continue to resonate, underscoring the importance of justice, integrity, and the power of the law in shaping society.

The Biden administration's negotiations with hydrogen industry leaders about legally binding commitments for new jobs and lower emissions are crucial for community support and achieving U.S. environmental justice goals. However, the secrecy surrounding these negotiations is a major concern in the Department of Energy's strategy to engage communities in its $8 billion hydrogen hub program. The department and hub leaders have kept their applications private, citing confidential business information, leading to frustration among communities and environmental justice advocates.

These hydrogen hubs, a key federal clean energy program, are drawing attention from various sectors, but the lack of transparency is creating issues for hydrogen proponents. The DOE is aware of the negative public perception risks and sees the community benefits plan as a way to shape the industry. This plan requires applicants to explain how they will benefit residents and meet the Biden administration's Justice40 goals.

The DOE estimates that by 2030, the U.S. demand for hydrogen could create 100,000 new jobs and the hubs alone could reduce 25 million metric tons of CO2 emissions annually. The hub model aims to demonstrate hydrogen production, transport, and consumption technologies in diverse U.S. regions. However, measuring the benefits and harms of these hubs and making them public is seen as crucial.

A significant concern is the extent to which the hubs will rely on fossil fuel production. Although two-thirds of the project investment is for green hydrogen, a substantial portion involves natural gas with carbon capture and storage, raising questions about the overall 'green' impact of these hubs. Transparency in project details, given the use of public funding, is a priority for industry experts.

In the Midwest, a hub plans to use all three types of hydrogen production, raising concerns about seismic activity, water quality, and potential CO2 contamination. Community benefits and labor agreements are in place, but releasing plans too early might create false expectations among communities. The hub leaders aim for transparency but are cautious about revealing details prematurely.

Secretive Hydrogen Hub Talks Test Energy Agency Community Plans

In the case of In re Envision Healthcare Corp., the U.S. Bankruptcy Court for the Southern District of Texas addressed a conflict between the Bankruptcy Code and the Delaware Limited Liability Company Act (LLC Act). The court ruled that section 541 of the Bankruptcy Code, which creates an estate of all a debtor's interests at the bankruptcy commencement date, overrides section 18-304(1)(b) of the LLC Act, which strips an LLC member of its membership interest upon bankruptcy filing. This decision means that a member of a Delaware LLC retains all legal and equitable interests in the LLC when they file for bankruptcy.

Before the bankruptcy filing, one of the debtors, Amsurg Holdings LLC, along with other entities, held management and voting membership interests in Folsom Endoscopy Center, a Delaware LLC. After the bankruptcy filing, other members amended the operating agreement, reflecting the debtor's loss of voting and managerial interest. However, the court, rejecting a motion to compel arbitration, found that the dispute was about the legal rights held by the debtor in the LLC at the bankruptcy's commencement.

The court rejected the argument that the debtor only retained an economic interest in the LLC, asserting that any managerial or voting rights became part of the bankruptcy estate. It concluded that section 18-304 of the LLC Act conflicts with the Bankruptcy Code and cannot strip LLC members of their rights upon filing for bankruptcy. This decision emphasizes the protection of property rights of debtors who are LLC members and has implications for LLC members in terms of counterparty risk and business dealings in the event of co-member or manager bankruptcy.

Court refuses to enforce Delaware statutory provision stripping LLC interests upon bankruptcy filing | Reuters

US Senior District Judge William Young, based in Boston, recently presided over a bench trial remotely for a case in Asheville, North Carolina. This unique trial involved judiciary officials' handling of misconduct claims by former federal defender Caryn Strickland, where all judges in the circuit had to recuse themselves, leading to Young's appointment. Despite the distance, Young effectively managed the trial, showcasing the growing normalcy of remote legal proceedings, a trend accelerated by the Covid-19 pandemic.

The trial, which stretched over five half-days, wasn't without technical difficulties, such as audio delays and screens occasionally turning off. These challenges highlighted the imperfections of remote courtroom technology. Judge Young, known for conducting remote jury-waived trials for years, took on this case as part of his efforts to assist overburdened court districts. He has a history of helping in various districts, including managing tobacco product liability litigation in Florida and handling dispositive motions for the Northern District of Oklahoma post the McGirt v. Oklahoma decision.

During the trial, there were moments of disconnect due to the technology, with Young apologizing for not being able to distinguish the attorneys and sometimes asking for identification before they spoke. Despite these challenges, the trial proceeded with Young and his staff adeptly handling logistics.

The physical contrast between the two courtrooms was notable, with Asheville surrounded by local businesses and the Boston federal courthouse located in a trendy district. The trial culminated with Young insisting on the public nature of court proceedings, denying a request for attorneys to appear remotely for closing arguments, emphasizing the importance of maintaining the public and formal aspects of the judicial process.

Veteran Boston Judge Leads a North Carolina Trial From Afar

Minimum Competence - Daily Legal News Podcast
Minimum Competence
The idea is that this podcast can accompany you on your commute home and will render you minimally competent on the major legal news stories of the day. The transcript is available in the form of a newsletter at