Hancock Whitney Center701 Poydras Street Suite 5000 New Orleans, Louisiana 70139 Overview Cheryl Kornick is an experienced trial and appellate lawyer, and a fellow in the American College of Trial lawyers, an organization composed of preeminent member of the trial bar and recognized as the leading trial lawyers organization in the United States and Canada. She is experienced in helping clients with claims and disputes, often in the energy sector, including both upstream and midstream matters. She also is experienced in alternative dispute resolution, including AAA arbitrations and mediations. Cheryl regularly appears in Louisiana’s state and federal courts and before the Louisiana Supreme Court, often involving pipeline, royalty, land acquisition, joint operating agreements, and other complex claims and disputes.
Cheryl's clients also come to her for counsel and representation on complex business tax disputes, an area where she's well-regarded for her ability to de-jargonize highly technical information and communicate it clearly, simply and persuasively. Her state and local tax litigation practice and business law experience includes such issues as:
Working closely with the firm's tax lawyers, Cheryl regularly represents corporate taxpayers against the Louisiana Department of Revenue and local taxing authorities in matters before the Louisiana courts, Louisiana Tax Commission and Louisiana Board of Tax Appeals. She has taken many state and local tax disputes from trial to final disposition in the Courts of Appeal and the Louisiana Supreme Court. She recently successfully argued a major case before the Louisiana Supreme Court where the Louisiana Supreme Court declared a Louisiana tax statute unconstitutional in violation of the Dormant Commerce Clause. She also won in the Louisiana Supreme Court a case regarding a long-standing tax exemption for the ship building industry and Department of Revenue regulations for charging sales tax on major projects. In another complex, precedent-setting tax case before the Supreme Court, Cheryl was the litigation partner in a case involving how the state can tax utilities ultimately decided by the Louisiana Supreme Court.
In addition, Cheryl is a frequent speaker and a noted authority on energy litigation issues. Her background in this area includes royalty and mineral lease issues, pipeline-related matters, energy marketing, contracts disputes, expropriation actions and oil well lien actions. She has continued the firm’s long history of special expertise in pipeline matters, including the handling of all land acquisition issues in major pipeline projects in Louisiana. She also has taken numerous expropriation matters from pre-suit negotiations to trials and appeals.
Cheryl is chair of the firm’s technology committee and is highly experienced in the use of computerized litigation support. She was selected for the inaugural, 2005 New Orleans CityBusiness Leadership in Law Award.
Notable Client Stories
"Resolving the issue of tax treatment on a major corporate gain"
Our client: A major oil and gas producer
What happened: When our client sold a refinery downriver from New Orleans, it realized a huge gain on the sale. The question became: How would the gain be treated for tax purposes?
Our approach: Our team argued and proved that the sale was part of the client's regular course of business nationwide.
The result: We convinced the court to order that the gain was to be allocated throughout the U.S., instead of treating the entire gain as taxable by Louisiana authorities. See BP Products North America, Inc. v. Bridges, 2011 La. App. LEXIS 937 (La. App. 1 Cir., Aug 10, 2011), writ denied, 2011-1971 (La. 11/14/11), 75 So. 3d 947, 2011 La. LEXIS 2756
"Showing an unfair tax advantage"
Client: The Greater New Orleans Hotel and Lodging Association
What happened: In a politically-charged, front-page hotel development project in downtown New Orleans, the developers obtained a deal with the local taxing authority to divert Tax Increment Financing proceeds to the financing of the project rather than to payment of bonds for the Louisiana Superdome, an advantage not available to any other hotel in downtown New Orleans.
Our approach: We convinced the Louisiana Supreme Court that the diversion created an unfair advantage in favor of the hotel project and that the specific TIF at issue was an improper use of public funds.
The result: Our client prevailed. See World Trade Center Taxing District v. All Taxpayers, 05-0374 (La. 06/29/05) 908 So. 2d 623
Experience Some other notable engagements in the Louisiana Supreme Court, the Courts of Appeal and various trial courts include:
Obtained a dismissal at the pleading stage of several suits against oil and gas companies alleging, among other things, fraud and RICO claims based on alleged failure to pay property taxes. Bonvillain v. Louisiana Land & Exploration et al., 43 Fed. Appx. 319 (5th Cir. 2011). Represented a taxpayer and obtained a decision that clay sold to the Army Corps of Engineers was excluded from sales taxes.Odebrecht Const., Inc. v. Louisiana Dept. of Revenue, 2015-0013 (La. App. 1 Cir. 9/18/2015), 182 So. 3d 132. Represented the taxpayer in the “test case” for application of the Louisiana flex fuel tax credit. Barfield v. Bolotte, 185 So. 3d 781 (La. App. 1 Cir. 2015). Represented Cimarex Energy Company against a claim by a lessor seeking profits from the financial trading activities Cimarex used to hedge against price fluctuations of its oil and gas production as royalties under the lease. The United States District Court for the Western District of Louisiana granted summary judgment in favor of Cimarex, and the United States Fifth Circuit Court of Appeals affirmed. Cimarex Energy Co. v. Chastant, 2012 U.S. Dist. LEXIS 180815 (W.D. La. Dec. 18, 2012), affirmed by 2013 U.S. App. LEXIS 16030 (5th Cir. Aug. 2, 2013). This decision is believed to be the first of its kind expressly recognizing that royalty owners have no claim on profits made from financial trading activities used to hedge against price fluctuations. BP Products North America, Inc. v. Bridges, 2011 La. App. LEXIS 937 (La. App. 1 Cir., Aug 10, 2011), writ denied, 2011-1971 (La. 11/14/11), 75 So. 3d 947, 2011 La. LEXIS 2756 Engaged as appellate counsel after an adverse judgment in a Louisiana district court, secured a reversal by the Louisiana Supreme Court of a multi-million dollar statutory damages judgment entered against an oil and gas operator arising from allegations that a concursus had been improperly filed. Cimarex Energy Co. v. Mauboules, 2009-1170, 2010 WL 1531363 (La. 4/9/10), -- So. 3d --. Represented Entergy in a dispute over property taxes, and obtained a unanimous Louisiana Supreme Court decision in favor of her client. Gisclair v. Louisiana Tax Commission, Entergy Louisiana, Inc, eta al, 2009-C-0007 c/w 2009-C-0008 (La. 6/26/09) Achieved a favorable unanimous Louisiana Supreme Court decision for her client, who opposed TIF of a proposed sporting goods store in Denham Springs, Louisiana. Denham Springs Economic Development District v. All Taxpayers, No. 2004-CA-1674 (La. 2/04/05) 894 So. 2d 325 Represented Cleco Evangeline LLC in an ad valorem tax dispute over the assessment of a wholesale power plant as public service property. A decision was made in favor of her client by the Louisiana Supreme Court. Cleco Evangeline LLC v. Louisiana Tax Commission, 813 So. 2d 351 (La. 2002) Obtained a dismissal on the pleadings in favor of her client in a multi-million dollar antitrust case. Tuban Petroleum, L.L.C. v. Siarc, Inc,, 2009-CA-0302 (La. App. 4 Cir. 04/15/09) Represented Unocal Pipeline in a dispute over the correct treatment of partnership income for Louisiana corporation income tax purposes. The Court of Appeal decided in favor of Unocal; writs denied by the Louisiana Supreme Court. Unocal Pipeline Co. Kenned, 2003 CA 1946 c/w 2003 CA 1947 (La. App. 1st Cir. 12/30/04), 898 So. 2d 395 Represented a restaurant in a dispute over collection of sales taxes, with the Court of Appeals deciding in favor of her client. Bridges v. Hana Corp., 2004 - CA - 0754 (La. App. 4th Cir. 10/27/04), 888 So. 2d. 944 Represented Entergy Louisiana in a franchise tax dispute about whether lease obligations under sale-leaseback arrangements are includable in the franchise tax base as borrowed capital. The Louisiana First Circuit Court of Appeals decided in favor of her client. Entergy Louisiana Inc. v. Kennedy, 2003-D166 (La. App. 1st Cir. 7/02/03) 859 So. 2d 40 Obtained a favorable decision for System Fuels from the Louisiana First Circuit Court of Appeals in a franchise tax dispute over whether capitalized lease obligations were includable in franchise tax base as borrowed capital. System Fuels, Inc. v. Kennedy, 2002-1723 (La. App. 1st Circuit 6/27/03) 858 So. 2d 585 Represented Texaco entities in a severance tax dispute involving crude oil trading issues. State of Louisiana, et al v. Texaco Trading and Transportation, Inc. 19th Judicial District Court for the Parish of East Baton Rouge, State of Louisiana Achieved favorable case settlements for various Texaco entities in an income and franchise dispute that involved intercompany debt (“triangular netting”), whether certain intercompany payables were normal trade payables, negative capital account, and the attribution or allocation of certain expenses. Texaco, Inc. v. Kennedy ; TRMI Holdings Inc. v. Kennedy ; Texaco Refining and Marketing Inc. v. Kennedy ; Texaco Refining and Marketing (East), Inc. v. Kennedy; 19th Judicial District Court for the Parish of East Baton Rouge, State of Louisiana Represented Calcasieu Refining in an income tax dispute over whether cash deposits made by suppliers were properly classified as interest income. The First Circuit Court of Appeals decided in favor of her client. Secretary v. Calcasieu Refining Company, 809 So. 2d 1023 (La. App. 1st Cir. 2001)
InvolvementProfessional
The Foundation For Natural Resources and Energy Law, Member American College of Trial Lawyers – Fellow Louisiana State, Fifth Federal Circuit and American Bar Associations – Member Cheryl made her first appellate argument before the U.S. Fifth Circuit Court of Appeals while still in law school.
Recognition
New Orleans Magazine’s List of “Top Lawyers,” 2015-2019 New Orleans CityBusiness Leadership in Law Award, 2005 The Best Lawyers in America, 2013-2016, 2018-2022 Best Lawyers' Litigation and Controversy - Tax "Lawyer of the Year", 2015 and 2021 Louisiana Super Lawyers, 2012-2013, 2016-2018, 2020-2022
Presentations
"Midstream Update," Liskow & Lewis Energy Law Seminar, October 28, 2021 "Recent Ad Valorem Tax Decision - Can you ask the Tax Assessor to reduce your property tax assessment if it's too high?" Louisiana Oil & Gas Association Fall Meeting and Seminar, September 18, 2018 “Acquiring Pipeline Land Rights in Louisiana” The 61st Annual Louisiana Mineral Law Institute, April 4, 2014 “Does Market Volatility in the Oil Patch Breed New Litigation?” The 56th Annual Louisiana Mineral Law Institute, April 3, 2009 “Tax Update and Disputes.” University of New Orleans Energy Accounting Conference. May 17, 2007 (with Bob Angelico) "Operator Liability in the 21st Century: Is Being in Charge Still Worth It?," Rocky Mountain Mineral Law Foundation, July 2005 "Recent Developments in Oil and Gas Law," Current Issues and Developments for Landmen and In-House Counsel Seminar, Houston, Texas, October 2003 "Exposure to Punitive Damages and Penalties in Oil and Gas Litigation," Current Issues and Developments for Landmen and In-House Counsel Seminar, Houston, Texas, September 2001 “Record Keeping in Anticipation of Litigation, Current Practice and Problems Facing Louisiana Oil and Gas Operators’ Seminar,” Houston, Texas, September 1999
Publications
"United States Supreme Court Blocks New Jersey’s Sovereign Immunity Challenge to FERC Certificate Holder’s Condemnation of State-Owned Land," Liskow & Lewis' The Energy Law Blog, August 3, 2021 "Recent Changes to Louisiana Tax Penalty Regime," Liskow & Lewis' The Energy Law Blog, November 6, 2020 "Louisiana Supreme Court Addresses the Role of Louisiana Tax Commission," The Energy Law Blog, October 26, 2020 "Second Remand Order in Coastal Zone Management Cases Pending Before Fifth Circuit," Liskow & Lewis' The Energy Law Blog, January 2, 2020 "Liskow Obtains Victory for the Oil and Gas Industry in the Louisiana Third Circuit," Liskow & Lewis' The Energy Law Blog, April 17, 2019 Louisiana Supreme Court Upholds Expropriation of Commercial Venture "Expropriated Servitudes: They Aren’t Going Away Anytime Soon," Liskow & Lewis' The Energy Law Blog, November 21, 2016 Louisiana Flooding – Legal Update, Liskow & Lewis' The Energy Law Blog, August 18, 2016 "All or Nothing: Regulators Strictly Define Pipeline Abandonment," Liskow & Lewis' The Energy Law Blog, August 18, 2016 Louisiana Department of Revenue Targets Energy Companies in Rash of Oil Severance Tax Audits, Liskow & Lewis' The Energy Law Blog, July 21, 2016 "SAFE PIPES Act: 2016 Legislation Affecting PHMSA," Liskow & Lewis' The Energy Law Blog, June 23, 2016 U.S. Fifth Circuit Denies Claim for Royalties on Hedging Activity
After Hours"For fun? I'm a big Saints fan. In fact, my husband is a sideline official at NFL games in the Superdome. I'm also a history buff." |
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