Texas, however, endured not one but two major disruptions over the past year that sparked fierce force majeure debates: COVID-19 and Winter Storm Uri, which disabled Texas' energy grid in February. The latter, in particular, has triggered an avalanche of contract litigation unlike any even veteran litigators in the state say they've ever seen. And most of those cases are not likely to wrap up neatly in the near future.

The Buzz:

"The uncertainty of going to a courtroom makes everybody leery of following that path. I don't think anybody wants to test the waters. Even if you think you have the grounds to terminate, who knows what a jury is going to do?" said Mitchell Taraschi of Connell Foley in Roseland, New Jersey, who has seen force majeure raised frequently in construction projects during the pandemic. "I'm surprised, given all the problems during the pandemic, that most of the problems have been worked out. Everybody has tried to work together."

State courts vary widely in how they interpret force majeure clauses to begin with, Laura Holm of Fox Rothschild in West Palm Beach, Florida, told Toutant.

"The states have very different standards. Some, like New York, construe it very narrowly. In other states they'll give the plaintiff the benefit of the doubt how the contract should be interpreted," said Holm, who succeeded in canceling three big event contracts for her client just as the pandemic was getting underway in spring 2020.

Scott Lippert, a commercial real estate lawyer at Pashman Stein Walder Hayden in Hackensack, New Jersey, told Toutant that courts are presumed to be hostile to force majeure-based efforts to cancel contracts, so the focus is on settling.

"I'm seeing that, in general, resorting to the courts for relief of obligations is not working very well. I don't anticipate that it will," Lippert said.

Indeed, as William H. Grae, a partner at Chartwell Law in Philadelphia, wrote in a commentary piece for The Legal Intelligencer last summer, arguments that COVID-19 was sufficiently unforeseeable to allow for nonperformance of contractual obligations "have ample visceral appeal but cannot be reconciled with the last 15 years of current events and well-established precedent."

"Although the specific emergence and mechanism of the COVID-19 pandemic may have been unforeseen, the possibility of widespread pandemic and economic disruption was anticipated by the medical, legal and risk-management communities," Grae wrote. "Unless courts choose to overtly recognize a 'COVID-19 exception,' well-established legal precedent in most jurisdictions accordingly require rejection of arguments that delay due to the current pandemic was sufficiently unforeseeable to justify nonperformance absent an applicable force majeure clause."

And even if one is keen to advance the argument that this particular pandemic constitutes an issue of first impression and necessitates a "COVID-19 exception," that only opens up the potential to plunge even further into the unknown.

Ronald Chen, who teaches first-year contract law at Rutgers Law School in Newark, told Toutant there are no real experts on pandemic-related law, and that "like so much of the world, the law is improvising in dealing with a situation no one anticipated."

All of this has made for a major gamble most parties haven't been willing to make.

Then, of course, there's also the desire to wrap these cases up in a timely manner—a prospect that appears unlikely given the suffocating backlogs many courts are experiencing after a year-plus of severely restricted operations.

"I think everybody understands the position everybody is in, trying to move forward and get the project done," Connell Foley's Taraschi told Toutant.  "It's been remarkable how most parties have tried to work it out."

Perhaps, as Lathan & Watkins complex litigation partner Gwyn Williams began advising her clients early in the pandemic, more parties have opted to "be kind" given the widespread suffering caused by the pandemic.

Williams told Law.com's Ross Todd this past March that it was "certainly heartening" to find virtually all the clients she's spoken with over the past year have been "just as–if not more–concerned with understanding how best to protect their employees, customers, and business partners than they are with just pure litigation avoidance."

Said Williams, "As I'd hoped would happen, our clients have really been concerned with trying to do the 'right thing,' beyond simply trying to meet legal obligations."

>> The desire to resolve cases amicably and move on may be decidedly less strong when it comes to the explosion of force majeure litigation being filed in Texas over Winter Storm Uri.

As of earlier this month, court dockets showed that at least 40 such lawsuits had been filed in Texas courts—mostly in Houston, but also in Dallas, San Antonio and Austin, Law.com's Angela Morris reported.

In some cases, gas marketing companies are looking to get out of performing under their contracts since the storm crippled their infrastructure. Other companies are trying to dodge extremely high invoices for gas during the storm.

"It's really the litigation trend now for energy companies in Texas," Chris Hogan, a Houston energy litigator, told Morrs. "I had thought with COVID-19, we would see a spike in force majeure claims, but it is nothing compared to what is happening now."

He added: "Some of these have huge amounts of money–tens, or hundreds of millions of dollars at issue."

Energy litigator Corey Wehmeyer of San Antonio told Morris that disputes have proliferated because the winter storm interrupted the facilities of natural gas producers and gatherers. These interruptions decreased the state's supply of natural gas, he said. Also, some generation plants could not accept volumes of gas. But some parts of the state were not as badly impacted, and some companies didn't face severe interruptions, he added.

"Demand was all the while surging, with astronomical daily prices for gas. The average monthly gas price reached exponential multiples over anything seen before," said Wehmeyer, partner in Santoyo Wehmeyer. "Huge winners and huge losers emerged. There is no doubt litigation will continue to proliferate as the losers pursue strategies to alleviate the financial burden associated with the winter storm."

And, unlike with COVID-19 contractual disputes, there may be more of an appetite in these winter storm cases to press the issue at trial.

Hogan predicted the trend in Texas would continue for quite some time, since current cases could take years to get to trial and appeal. There are still companies negotiating to try to find business solutions for their disputes before they file litigation. But as the negotiations end, if they can't agree, it would mean more lawsuits.

"People talk about force majeure a lot and there are cases out there, but in my practice in the energy field, I have never seen anything quite like it in terms of the volume of force majeure lawsuits in court right now," Hogan said. "I think a fair amount will go up to trial and through appeal, and we will probably a new host of force majeure case law."