Neil Kelly

Neil D. Kelly is a trial lawyer whose practice focuses on complex civil disputes, corporate investigations, pre-litigation dispute analysis and transaction and risk due diligence for clients active in oil and gas exploration and development, energy-related manufacturing and services, real estate, wood-products testing and private equity investments.

Neil achieves results for clients through the early assessment of critical facts and controlling legal principles to develop a comprehensive strategy.

Specific experience includes disputes involving purchase and sale agreements, supply and service agreements, commercial building leases, mineral leases, joint operating agreements, areas of mutual interest, trade secret disputes and non-compete and related employment agreements, as well as investigations by the Securities and Exchange Commission, Department of Justice, Fraud Division and the Federal Trade Commission.

Experience:

Neil has served as lead trial counsel or the principal lawyer on numerous matters, including the following:

• Represent client as a key third party witness in investigations by Department of Justice, Fraud Division, Securities and Exchange Commission and Internal Revenue Service in ongoing matter.
• Represent oilfield services client in investigation arising from whistleblower complaints of apparently false inspections of trucks in over 15 states.
• Advising client in potential False Claims Act matter arising from alleged attempt to avoid countervailing.
• Advising clients on Foreign Corrupt Practices Act; providing training and compliance program review and advice.
• Represented audit committee of publicly traded company in internal investigations arising from whistleblower ethics complaints.
• Resolved SEC investigation of fraudulent dealings by a client’s former management, avoiding crippling fines and onerous injunctive restrictions.
• Investigation into whistleblower allegations at Pennsylvania-based coal company of overstatement of earnings and management mis- mal- and non-feasance that later led to FCPA investigation.
• Represented accountant who was a third party witness in significant fraud investigation.
• Frequent analysis of material terms of transactions and deal documents, including indemnifications, representations and warranties, dispute resolution provisions, choice of law, employment agreement provisions, non-compete provisions and other matters.
• Multiple matters involving transaction analysis for master limited partnerships in disputes with investors regarding calculation of units, distributions, buyout provisions and asset characterizations.
• Represent private equity client in Delaware law disputes over working capital true ups and indemnification claims arising from alleged breaches of representations and warranties in entity purchase and sale agreement and related asset sale agreement.
• Represented plaintiff oil and gas drilling rig contractor against sellers/manufacturer of drilling rigs to assert claims for breaches of representations and express and implied warranties, fraud and negligent misrepresentation.
• Represented plaintiff oil and gas drilling contractor to recover losses arising from defective and deficient diesel generators and insufficient service.
• Represented oil and gas drilling contractor in lawsuit with subcontractors and claims for payment brought by third parties; avoided liens on property.
• Represented oil field pipe seller in dispute with Chinese supplier whose products were defective, untimely or lacking critical value-adding documentation regarding specifications.
• Represented oil field service provider in disputes with former President whose actions caused company to breach multiple contracts with vendors; led team that successfully avoided in arbitration a vendor’s draconian liquidated damages provision.
• Represented plaintiff oil field service provider in lawsuit against inventors and purported owners of cutting technology to recover for negligent misrepresentations and breaches of contract and to resolve disputed ownership of technology and prototypes; matter resolved when a defendant filed for bankruptcy, allowing client to clear title to intellectual property and prototype.
• Represented Gulf of Mexico oil and gas company in dispute over operatorship of offshore blocks arising from sale and assignment.
• Defended independent oil and gas exploration company in lawsuit alleging breach of joint operating agreement for improper charges of non-consent penalties; obtained trial court judgment that was sustained on appeal.
• Pursued claims and obtained recovery for independent oil and gas exploration company for breaches of area of mutual interest agreement in matter dealing with the statutes of fraud and limitations.
• Defended oil and gas exploration company in an arbitration brought by major seismic company to force payment of a substantial bonuses claimed due under seismic data agreement for exploration blocks in deep water Gulf of Mexico; obtained arbitration award that defeated all claims.
• Represented royalty owner in lawsuit against operator of South Texas gas field in lawsuit to recover for improper deductions from royalties; prevailed on summary judgment in federal court in Laredo, Texas and on appeal to the 5th Circuit Court of Appeals.
• Represented independent oil and gas exploration company in several lawsuits and an arbitration with minority working interest owners involving allegations of violations of fiduciary duties, breach of development obligations and AMI rights, improper accounting, tortious interference, trade secrets and breach of contract.
• Standardized oil field service and consulting agreements for foreign exploration company; performed analysis in India of client’s operations and diligence on additional transaction.
• Represented corporate trustee of royalty trust in lawsuit alleging failure to develop Gulf of Mexico lease and breach of fiduciary duties.
• Represented New Jersey-based investor in oil and gas investments in multiple wells in the Barnett Shale against Texas operator to prosecute claims for comingling of fund and breaches of joint operating agreements and investment agreements.
• Represented New York and Texas investment group in lawsuit brought by mineral co-owner to interpret deeds conveyances to recover portion of minerals covered by prior deed.
• Advised New York and Texas investment group in lawsuits in Ohio, West Virginia and Pennsylvania regarding mineral deeds and ownership of acreage in the Marcellus Shale.
• Represented oil and petroleum products rail and barge terminal and storage facility in a variety of disputes related to industrial development bonds and a declaratory judgment action to dispose of threatened claims by former shareholders alleging fraud, mismanagement and other theories of recovery.
• Represented gas storage facility and pipeline in lawsuit brought by directional drilling services provider against claims for payment of change orders, lost equipment and alleged unforeseen obstructions.
• Represented major refinery pipeline and storage facility operator in connection with Federal Trade Commission Second Request.
• Represented as claimants bankrupt entities in pre-litigation analysis of gas, oil, wind, power, weather and ISDA contracts. Obtained in excess of $40 million in settlements for bankruptcy estates.
• Represent fuel products trading company in efforts to restructure and pursue claims to recover misappropriated funds intended to establish line of credit for trading business.
• Represented oil, gas and commodities trading client in corporate transaction due diligence in acquisition of another company’s trading business. Evaluation of pending and threatened litigation and arbitration matters, as well as CFTC, FTC, FERC and CME matters and assessment of risks of additional regulatory actions.
• Represented landlord of commercial medical office building in an extensive dispute with tenant over building operating expenses; obtained favorable findings of fact and conclusions of law and final judgment and thereafter, a favorable settlement.
• Represented tenant to prosecute claims for specific performance of purchase option in real estate lease.
• Represent former owner of building against buyer for failure to perform assignment and assumption agreement relating to power agreement.
• Represented medical health plan for children in claim brought by former provider alleging over 2,500 unpaid medical claims; obtained complete rejection of all claims in arbitration.
• Represented international investment concern against Houston-based portfolio manager in fraud, breach of contract and conversion claims to recover investment funds.
• Represented scrap metal dealer against Mexican supplier in federal court; obtained denial of motions to dismiss, including for forum non conveniens, and ultimately prevailed on motion for summary judgment.
• Took over representation of Mexican time-share resort in wrongful death lawsuit pending in the plaintiffs’ hometown, and despite prior adverse findings of personal jurisdiction over resort and alter ego, obtained dismissal on forum non conveniens grounds.

EDUCATION:

• JD, Tulane University Law School, magna cum laude, Phi Delta Phi, Order of the Coif, 1992
• BSM, Tulane University, 1988

BAR ADMISSIONS:

• Texas

COURT ADMISSIONS:

• US District Court, Southern District of Texas
• US District Court, Eastern District of Texas
• US Court of Appeals, Third Circuit
• US Court of Appeals, Fifth Circuit

Memberships:

• Texas Bar Foundation, Fellow
  • Member, Houston Nominating Committee
• State Bar of Texas, Director, Place 4, Place 2 – Term Expires 2020
  • Advisor to Standing Committees
    • Pattern Jury Charge – Oil and Gas
    • Local Bar Services
  • Advisor to SBOT Sections
    • Business Law Section
    • LGBT Law Section
  • SBOT Board Committees
• Houston Bar Foundation, Sustaining Life Fellow
• Houston Bar Association – President (2016-2017); President-elect (2015-2016); Treasurer (2014-2015); Board Member (2011 to Present)
  • Texas Access to Justice Commission Deborah G. Hankinson Award
  • Two State Bar of Texas Star of Achievement Awards
  • Three State Bar of Texas Publication Awards
  • Houston Volunteer Lawyers, Inc. – Chair (2014-2015); Chair-elect (2013-2014); Treasurer (2012-2013); Secretary (2011-2012)
  • Houston Lawyer Referral Service – Chair (2015-2016); Chair-elect (2014-2015); Treasurer (2013-2014); Secretary (2012-2013)
  • Litigation Section – Chair (2006-2007); Chair-elect (2005-2006); Vice Chair (2004-2005); Secretary and Treasurer (2003-2004)