Gas & Welding Industry

gas2Kaplan Law Firm has built a national practice with a focus on serving the needs of the gas and welding industry for more than 25 years:

  • Civil Litigation and Trials.
  • Collections, (both monetary recovery and recovery of cylinders).
  • Loss prevention (plant operations; transportation, etc.).
  • Preparing business forms (product supply agreements, credit applications, invoices, employee handbooks/manuals, shipping and delivery tickets/shipping manifests, confidentiality agreements, etc.)
  • Competitive business practices (e.g., trade secret, unfair competition, customer lists, non-solicitation and non-compete issues).
  • Employment matters (e.g., wrongful termination, discrimination, wage and hour violations, workers compensation matters).
  • Code of Federal Regulation Compliance.
  • OSHA compliance.
  • DOT compliance.
  • HazMat/MSDS compliance.
  • Defense of tort liability/indemnity claims involved in plant filling, loading, transporting operations and catastrophic plant operations leading to death, millions of dollars in property damage, etc.
  • Management of liability claims stemming from gas/cryogenic contamination/impurity disputes (biotech; breathing air; medical/FDA, etc.).

A. Contract Negotiations and Dispute Resolution

(i) Represented regional gas and welding distributor in contract dispute with national retailer involving (helium) product shortages and issues of force majeure. Dispute resolved favorably for client without litigation.

(ii) Represented independent welding supply company in contract and warranty lawsuit against seller and refurbishing company of defective bulk gas tank. Issues included plumbing defects and metallurgical inadequacies, requiring expert witness testimony. Six-figure judgment obtained in favor of client after out of state trial.

(iii) Represented wholesale specialty gas distributor in dispute with valve manufacturer. Valve manufacturer accused distributor of trademark violation in connection with sales of “refurbished” valves and threatened lawsuit. Dispute resolved favorably for client without litigation.

(iv) Represented gas and welding distributor in connection with successful negotiation of long-term supply agreement with national retail chain.

B. Purchases and Sales, and other Corporate Transactions

(i)  Represented regional gas and welding distributor in multi-million dollar negotiation and sale of carbon dioxide division to national competitor, including related real property leases.

(ii) Represented client in negotiations for sale of regional specialty gas manufacturing business.

(iii)  Represented seller in post-sale litigation with buyer of specialty gas business, involving Chinese subsidiary and non-compete issues. Resulted in favorable seven-figure settlement for client.

(iv) Represented independent gas and welding distributor in corporate reorganization of acetylene gas processing division, including related real property transactions.

C. Business Forms and Labor & Employment Policies

(i) Business Forms: Drafted/revised/updated standard business forms for numerous independent welding supply and gas and welding distributors (product supply agreements, tube trailer leases, bulk tanks leases, credit applications, invoices, terms and conditions, shipping and delivery tickets/shipping manifests, etc.) to greatly improve liability protection and rights in payment disputes. Created policies for clients to assure that terms in business forms are consistent with (and not undermined by) the reality of business operations.

(ii) Labor & Employment Relations: Prepared employment-related business forms for gas and welding industry employers, including employee contracts, non-compete agreements, confidentiality agreements and employee handbooks, performance evaluation forms, disciplinary-corrective action forms, etc. Provided day-to-day advice and counsel to employers for countless employment issues, large and small.

D. Customer List Protection

(i)  Several of Plaintiff’s employees resigned en masse and founded a scratch start welding supply distributor financed by the principal of a competitor.
Damages/Exposure: Several million dollars in sales were “at risk” of imminent misappropriation.
Result: Preliminary injunction obtained forthwith; virtually all Plaintiff’s customers were protected; Defendant reimbursed Plaintiff for 90% of its attorney’s fees and paid damages in addition thereto.

(ii)  Ex‑employee resigned, took Plaintiff’s customer lists and successfully solicited the Plaintiff’s customers for new employer.
Damages/Exposure:  Hundreds of thousands of dollars in misappropriated customer sales.
Result:  Preliminary Injunction/Summary Judgment entered; Defendant forced to file personal bankruptcy and authored/published letter of apology to all affected Plaintiff’s employees; letter of apology was posted/framed behind glass and displayed in employee break room.

(iii) Numerous ex‑employees resigned, attempted misappropriation of Plaintiff’s customer list through a new, competing employer.
Result:  Without filing a lawsuit, each ex‑employee abandoned further misappropriation and we successfully negotiated resolution protecting Plaintiff’s trade secrets.

(iv)  Several then‑current Plaintiff’s employees resigned en masse (driver, store manager, outside salesman, etc.) and created a “scratch start” welding supply distributor fifty yards down the street.
Damages/Potential Exposure: Millions of dollars in current/future sales.
Result:  Trade secret lawsuit filed and promptly and favorably settled.  Stipulated injunction entered; Plaintiff’s customer base protected and money damages were paid out over lengthy pay‑off period.

(v)  Plaintiff’s former employee misappropriated Plaintiff’s customer list through aid of a new, competing employer.
Damages/Exposure: Hundreds of thousands of dollars in threatened loss of sales.
Result:  “Cease and desist” letter sent to ex‑employee who refrained from continued misappropriation; claim resolved based on “cease and desist” letter without filing lawsuit.

(vi)  Key outside salesmen resigned en masse and “scratch started” a welding supply distributor financed by Plaintiff’s largest (volume/margin dollars) local customer; full scale misappropriation of Plaintiff’s customer list.
Damages/Potential Exposure: Millions of dollars in current/potential sales.
Result:  Trade secret lawsuit filed; suit settled with favorable result; stipulated injunction; long‑term pay‑out of money damages by ex‑employees.

“Scratch start” company failed/closed and ex‑employees have stayed away from Plaintiff’s customers ever since.

(vii) Plaintiff’s former salesman misappropriated Plaintiff’s customer list through new employer.
Result: Trade secret lawsuit filed; ex‑employee promptly entered into stipulated injunction and has stayed away from all Plaintiff’s customers.

E. Collections

(i)  Seizure of cash accounts, cylinders and bulk receivers in countless collection actions. Attorney fees, costs and prejudgment interest are sought to the extent permitted by law.

(ii)  Seized assets of debtors to satisfy judgments.

(iii)  Represented creditors in bankruptcy proceedings.

(iv)  Organized logistics, training, etc., for in-house collections (e.g., use of Demand Letters, Small Claims Court, etc.)

F. Tort Claim Defense

(i)  Plaintiff was struck on the head while working on oil platform off the coast of Louisiana.  He sustained permanent brain damage, was left in a coma and required in excess of $1 million per year in continued medical care; he eventually died, leaving a wife and two children.  Defendant filled/maintained the subject nitrogen cylinder which struck Plaintiff on the head.
Demand:  $18 Million
Offer by Third-Party Defendant: $12 Million
Settled: $5 Million
Defendant Contribution:  $0; successful defense through motion to dismiss for lack of jurisdiction and “convinced” plaintiffs’ counsel not to pursue Defendant in California.

(ii) Plaintiff purchased liquid nitrogen and welding gloves from Defendant; through misuse of product, Plaintiff spilled liquid nitrogen directly into the glove of his left hand (while his left hand was still in the glove).  His injuries were sufficient to warrant the amputation of his left hand — at the wrist.
Result:  Defendant paid $0/zero and we prevented the claim from being filed.

[Potential exposure ranged from $1 to $4 million.]

(iii) Electrical contractor, Plaintiff, was nearly electrocuted to death while repairing an electrical panel at Defendant’s filling plant.  One of the most highly regarded plaintiff’s tort firm in the state prosecuted the case.
Demand:  Approximately $2 million
Result:  Defendant paid $0/zero; victory obtained through summary judgment.

(iv)  Plaintiff filed an asbestosis lawsuit and claimed Defendant sold supplies which contained asbestos which caused/contributed to his disease.
Demand:  In excess of $3 million
Result:  Defendant paid $0/zero; through one deposition, Plaintiff was convinced of the absence of Defendant’s involvement and the dismissal was obtained forthwith.

(v)  Plaintiff cut off two of his fingers and damaged tendons in his hand/wrist through use of a miter saw purchased from a gas and welding supplier.
Demand: In excess of $1 million
Result:  Defendant paid $5,000.00 “nuisance” value and shifted balance of loss to manufacturer.

G. Wrongful Termination/Labor Disputes

(i)  Several Plaintiffs were terminated for non‑performance/repositioning through recent acquisitions, all of whom were then‑existing salesmen who sought damages for wrongful termination, employment discrimination based on age, disability, etc.
Demand: Collectively in excess of $1 million
Result:  Zero dollars paid; dismissals obtained following depositions of each Plaintiff.

(ii)  Plaintiff, male minority over age 40, was terminated “for cause” and sued for wrongful termination/discrimination.
Demand:  $250,000.00
Result:  Zero dollars paid.  Judgment entered on Defendant’s summary judgment motion.

(iii)  Long‑term employee claimed and demonstrated ongoing sexual harassment by her manager.  Plaintiff attempted suicide and was eventually terminated prior to engagement of counsel.
Demand:  In excess of $1 million
Result:  Zero dollars paid; use of claimant’s (psychiatric injury) workers’ compensation claim was resolved by our office and statute of limitations asserted as a perfect defense to sexual harassment and wrongful termination claims.  Plaintiff sued her own lawyers for legal malpractice, recovering several hundred thousand dollars.