Midwest Energy Emissions Corp. et al. v. Arthur J. Gallagher & Co. et al.

Midwest Energy Emissions Corp. and its subsidiary MES Inc. (collectively, "ME2C" or "Plaintiffs") initiated this patent infringement lawsuit against a consortium of defendants, primarily energy companies and entities involved in the coal industry. ME2C is an environmental services and technology company focused on developing and delivering mercury capture solutions for the power industry, particularly for coal-fired flue gas using its Sorbent Enhancement Additive (SEA) technology. MES Inc. is a global manufacturing and supply chain management service provider, also active in the clean energy sector. The defendants include major power generation companies such as Vistra Energy Corp. (now Vistra Corp.), an integrated retail electricity and power generation company, and its subsidiary Dynegy Inc., which operates fossil fuel power stations. Other power generation and related entities named as defendants include Illinois Power Resources Generating, LLC, Dynegy Midwest Generation LLC, Dynegy Miami Fort, LLC, AEP Generation Resources Inc. (a subsidiary of American Electric Power), Southwestern Electric Power Co. (SWEPCO, also an American Electric Power subsidiary), and Cardinal Operating Company, LLC. Notably, Arthur J. Gallagher & Co., a global insurance brokerage and risk management services company, was also a defendant, having settled prior to a jury verdict against other parties. IPH, LLC is another defendant in the case. The accused technology involves the defendants' alleged unlicensed use of ME2C's patented mercury emissions reduction technologies, specifically its Sorbent Enhancement Additive (SEA) technologies, in their coal-fired power plants.

The primary patent explicitly at issue in this case, as per the case metadata, is U.S. Patent No. 10,668,430. This patent, along with others asserted by ME2C in broader litigation, is generally directed to sorbents for the oxidation and removal of mercury, describing methods and compositions for capturing mercury pollution at coal-fired power plants by using a combination of halogen additives (such as bromine and iodine) and activated carbon. The litigation is proceeding in the U.S. District Court for the District of Delaware (Case No. 1:19-cv-01334), a venue frequently chosen for patent disputes due to its specialized expertise and established case law. Magistrate Judge Christopher J. Burke has handled significant aspects of the case, including issuing memorandum opinions.

This case is notable for several reasons. It is part of a larger, coordinated patent enforcement campaign by Midwest Energy Emissions against numerous power utility companies for infringement of its mercury emissions control technologies. This broader effort has resulted in the consolidation of similar cases into an MDL (MDL No. 3132) in the Southern District of Iowa, aiming for judicial efficiency and consistent rulings across numerous defendants. Furthermore, the specific Delaware action has already seen significant developments, including settlements with some defendants (such as Arthur J. Gallagher & Co. and DTE Energy Resources LLC in November 2023) and a substantial $57 million jury verdict in March 2024 against a group of refined coal defendants (including CERT Operations II LLC, CERT Operations IV LLC, CERT Operations V LLC, and CERT Operations RCB LLC) for willful infringement, inducing infringement, and contributory infringement. This verdict was recognized among the Top 100 Verdicts of 2024. The ongoing litigation underscores the importance of intellectual property in the environmental technology sector and the complexities of enforcing patents against multiple parties in the energy industry.

The case Midwest Energy Emissions Corp. et al. v. Arthur J. Gallagher & Co. et al. (1:19-cv-01334) in the U.S. District Court for the District of Delaware has seen significant legal developments since its filing.

Key Legal Developments and Outcome:

1. Filing & Initial Pleadings (2019)

• Midwest Energy Emissions Corp. (ME2C) and MES Inc. filed the patent infringement lawsuit on July 17, 2019, asserting various patents, including U.S. Patent 10,668,430, against numerous defendants, including Arthur J. Gallagher & Co. and several energy companies.
• The initial complaint alleged infringement of U.S. Patent Nos. 10,343,114 and 8,168,147 against a range of defendants, including the "Vistra Defendants," "AEP Defendants," "NRG Defendants," "Talen Defendants," "AJG," "DTE," "RC Defendants," and "CERT Defendants."
• Plaintiffs alleged willful patent infringement and sought damages and an injunction.

2. Pre-trial Motions of Substance

• Motions to Dismiss (2020): In June 2020, Magistrate Judge Christopher J. Burke issued a Report and Recommendation addressing motions to dismiss filed by several defendants. The court recommended granting dismissal with respect to MES Inc. as a plaintiff on certain issues. The motions to dismiss also addressed arguments regarding the sufficiency of pleadings for induced and contributory infringement and pre-suit knowledge of the asserted patents.
• Summary Judgment Motions (2023): Multiple motions for summary judgment were filed by the defendants.
  • On October 17, 2023, the Court denied defendants' motions for summary judgment regarding claims of patent infringement.
  • On October 19, 2023, another memorandum opinion was issued regarding a motion.
  • On October 23, 2023, the Court granted in part and denied in part a motion for summary judgment, specifically granting it for all claims of contributory infringement against the four CERT Operations Companies (CERT Operations II, LLC, CERT Operations IV, LLC, CERT Operations V, LLC, and CERT Operations RCB, LLC) and all claims against AJG Iowa Refined Coal LLC. The motion was denied as to DTE Energy Resources, LLC.
  • On November 8, 2023, a memorandum opinion denied defendants' motion for summary judgment regarding inducement claims.
• Motion to Exclude Expert Testimony (2023-2024): In November 2023, the Court denied a motion to exclude certain opinions of Plaintiffs' damages expert. A subsequent motion to reconsider this denial, regarding the inclusion of tax credits in patent damages, was granted-in-part and denied-in-part on February 21, 2024.

3. Claim Construction (Markman) Outcomes (2022)

• A Markman hearing was held on April 28, 2022.
• On June 24, 2022, the Court issued an Oral Order regarding claim construction for the term "combusting a mixture comprising coal, pyrolysis char, and an additive comprising HBr, a bromide compound, or a combination thereof," affording it its plain and ordinary meaning (Plaintiffs' proposal).
• On July 12, 2022, the Court issued an Oral Order regarding the "injecting" term, also affording it its plain and ordinary meaning (Plaintiffs' proposal).

4. Discovery Milestones with Strategic Significance (2022)

• On December 7, 2022, the Court denied defendants' motion to strike portions of Plaintiffs' expert reports on infringement and damages. While Plaintiffs failed to timely disclose a publicly-available license as comparable, the court found that this did not weigh in favor of striking the expert's opinions.

5. Trial Events, Verdict, and Post-Trial Motions (2024-2025)

• Trial (February - March 2024): A five-day jury trial took place from February 26, 2024, through March 1, 2024. The trial focused on claims 25 and 26 of U.S. Patent No. 10,343,114 and claims 1 and 2 of U.S. Patent No. 10,596,517 against the remaining CERT Defendants.
• Jury Verdict (March 1, 2024): The jury returned a verdict of $57 million in favor of Midwest Energy Emissions Corp. against the CERT Operations II LLC, CERT Operations IV LLC, CERT Operations V LLC, and CERT Operations RCB LLC defendants. The jury found willful infringement, inducing infringement, and contributory infringement. Non-final judgments were entered on the verdict.
• Bench Trial on Implied License (May 30, 2024): A separate bench trial was held on May 30, 2024, concerning the CERT Defendants' assertion of an implied license to the asserted patents.
• Post-Trial Motions (2025): The parties submitted various post-trial motions and briefing.
  • On June 10, 2025, the Court issued a Memorandum Opinion concluding that CERT failed to prove by a preponderance of the evidence that it had an implied license to the asserted patents.
  • On September 25, 2025, the Court denied CERT's motion for judgment as a matter of law (JMOL) regarding induced and contributory infringement.
  • On November 20, 2025, the Court denied CERT's motion for a new trial regarding the jury's verdict on infringement, finding that the jury instructions were not prejudicially erroneous and the verdict was not against the weight of the evidence.

6. Settlement, Dismissal, Judgment, or Appeal – Present Posture (Ongoing)

• Prior to the jury verdict, some defendants, including Arthur J. Gallagher & Co. and DTE Energy Resources LLC, settled with ME2C.
• The case remains active in the District of Delaware with ongoing post-trial proceedings and opinions being issued, such as the November 20, 2025 Memorandum Opinion. The final judgment on the jury verdict against the CERT defendants is pending the resolution of post-trial motions and the implied license defense.

7. Parallel PTAB IPR/PGR Proceedings

• U.S. Patent No. 10,668,430 is the subject of an Inter Partes Review (IPR2025-01322) initiated by Union Electric Company against Birchtech Corp. (d/b/a Midwest Energy Emissions Corp.). This IPR was ongoing as of 2025 and lists the Delaware district court case as a related judicial proceeding.
• Other IPRs have also been instituted on related patents. For example, Berkshire Hathaway Energy Company and others filed IPR2025-00423 challenging claims of U.S. Patent No. 10,668,430, and the Patent Trial and Appeal Board (PTAB) instituted review of all challenged claims. Another concurrent petition (IPR2025-00422) was filed challenging the same claims. The PTAB also instituted trial in IPR2025-00281, challenging claims of U.S. Patent No. 10,596,517.
• The MDL (MDL No. 3132) created in the Southern District of Iowa, consolidating similar cases, explicitly mentions that the Delaware action involved at least two of the patents asserted in the MDL (including 10,343,114 and 10,596,517) and involved numerous accused power plants and refined coal suppliers. The MDL aims to prevent inconsistent pretrial rulings, particularly with respect to claim construction and patent validity.

Midwest Energy Emissions Corp. and MES Inc. are represented by a team of attorneys from several law firms, including lead counsel and local counsel in Delaware.

Lead Counsel:

• Firm: Caldwell Cassady & Curry P.C. (Dallas, TX)
  • Bradley W. Caldwell: Lead Trial Counsel. He has a strong track record in patent litigation, including securing multiple "Top 100 Verdicts" with multi-million dollar patent infringement awards.
  • Justin T. Nemunaitis: Principal. He also presented witnesses at trial and is recognized for intellectual property and business disputes.
  • Daniel R. Pearson: Principal. He presented witnesses at trial.
  • Warren J. McCarty, III: Principal. He presented witnesses at trial.
  • Adrienne R. Dellinger: Played a vital role for the trial team.
  • Aisha M. Haley: Played a vital role for the trial team.
  • Richard A. Cochrane: Played a vital role for the trial team.

Local Counsel:

• Firm: Devlin Law Firm LLC (Wilmington, DE)
  • James M. Lennon:
  • Peter Akawie Mazur:

This document identifies counsel of record for the defendants in Midwest Energy Emissions Corp. et al. v. Arthur J. Gallagher & Co. et al. (1:19-cv-01334 D. Del.). It's important to note that Arthur J. Gallagher & Co. has settled, but their initial representation is included as context. The primary focus for ongoing representation will be the remaining defendants, particularly those involved in the recent jury verdict.

Based on recent court filings (from October 2023, February 2024, June 2025, July 2025, and November 2025), the following attorneys and firms are representing various defendants:

For Defendants CERT Operations II LLC, CERT Operations IV LLC, CERT Operations V LLC, CERT Operations RCB LLC, Senescence Energy Products, LLC, Rutledge Products, LLC, Springhill Resources LLC, Buffington Partners LLC, Bascobert (A) Holdings LLC, Larkwood Energy LLC, Cottbus Associates LLC, and Marquis Industrial Company, LLC (referred to collectively as "CERT RC Defendants" or "CERT Defendants"):

• Kenneth L. Dorsney
  • Role: Local Counsel
  • Firm: Morris James LLP, Wilmington, DE
  • Note: Morris James LLP is a prominent Delaware firm often serving as local counsel in patent litigation in the District of Delaware.
• Cortlan S. Hitch
  • Role: Local Counsel
  • Firm: Morris James LLP, Wilmington, DE
  • Note: Also with Morris James LLP, frequently appearing in Delaware patent cases.
• Jeff Dyess
  • Role: Lead Counsel
  • Firm: Bradley Arant Boult Cummings LLP, Birmingham, AL
  • Note: Specializes in complex litigation, including intellectual property.
• Paul Sykes
  • Role: Lead Counsel
  • Firm: Bradley Arant Boult Cummings LLP, Birmingham, AL
  • Note: Experienced in patent litigation and commercial disputes.
• Benn Wilson
  • Role: Lead Counsel
  • Firm: Bradley Arant Boult Cummings LLP, Birmingham, AL
  • Note: Focuses on intellectual property litigation, particularly patent and trade secret cases.
• Jessica Zurlo
  • Role: Lead Counsel
  • Firm: Bradley Arant Boult Cummings LLP, Washington, D.C.
  • Note: Involved in intellectual property litigation and regulatory matters.
• Ashley M. Robinson
  • Role: Lead Counsel (appears in more recent filings, e.g., June 2025)
  • Firm: Bradley Arant Boult Cummings LLP, Birmingham, AL
  • Note: Represents clients in complex commercial litigation, including intellectual property.

For Defendants AJG Iowa Refined Coal LLC, Arbor Fuels Company, LLC, Belle River Fuels Company, LLC, and Canadys Refined Coal (and potentially other "Refined Coal Defendants" associated with Gallagher, though Arthur J. Gallagher & Co. itself has settled):

• Jack B. Blumenfeld
  • Role: Local Counsel
  • Firm: Morris, Nichols, Arsht & Tunnell LLP, Wilmington, DE
  • Note: A highly experienced patent litigator in Delaware, often serving as lead or local counsel in significant patent cases.
• Brian P. Egan
  • Role: Local Counsel
  • Firm: Morris, Nichols, Arsht & Tunnell LLP, Wilmington, DE
  • Note: Specializes in intellectual property litigation in the District of Delaware.
• Anthony D. Raucci
  • Role: Local Counsel
  • Firm: Morris, Nichols, Arsht & Tunnell LLP, Wilmington, DE
  • Note: Focuses on intellectual property and complex commercial litigation.
• Richard W. Mark
  • Role: Lead Counsel
  • Firm: Gibson, Dunn & Crutcher LLP, New York, NY
  • Note: Chair of Gibson Dunn's Intellectual Property Practice Group, with extensive experience in high-stakes patent litigation.
• Joseph Evall
  • Role: Lead Counsel
  • Firm: Gibson, Dunn & Crutcher LLP, New York, NY
  • Note: Handles complex commercial litigation, including intellectual property disputes.
• Paul J. Kremer
  • Role: Lead Counsel
  • Firm: Gibson, Dunn & Crutcher LLP, New York, NY
  • Note: Focuses on patent and technology litigation.
• David Glandorf
  • Role: Lead Counsel
  • Firm: Gibson, Dunn & Crutcher LLP, Denver, CO
  • Note: Experienced in complex litigation, including intellectual property and commercial disputes.

Note on other named defendants (Vistra Energy Corp., IPH, LLC, Dynegy Inc., Illinois Power Resources Generating, LLC, Dynegy Midwest Generation LLC, Dynegy Miami Fort, LLC, AEP Generation Resources Inc., Southwestern Electric Power Co., Cardinal Operating Company, LLC):

The provided court documents primarily focus on the CERT RC Defendants and certain Refined Coal Defendants associated with Gallagher. While these other entities were named in the initial complaint, recent docket entries visible through public search mainly highlight the representation for the CERT defendants, particularly around the 2024 jury trial and subsequent opinions. It is possible that some of these other defendants have settled, or their representation is covered by the broader "CERT Defendants" or "Refined Coal Defendants" groups, or their counsel has not been prominently listed in the most recent publicly available opinions. Without direct access to the full, unredacted docket for all entries, definitively identifying current counsel for all initially named defendants beyond the CERT and certain Gallagher-related entities is not possible through public web search alone.