In a battle of corporate titans, Borden Inc. is suing Texaco Inc. for $600 million, accusing the oil company of contriving to escape a contractual obligation to supply natural gas to a large Borden petrochemicals plant.
Texaco even is using a ruling that it knowingly violated a federal law for more than a decade "as an excuse" to cut off gas to the plant two years before the obligation ends, Borden alleges.
And if Texaco succeeds, the lawsuit complains, it will be free to sell at high prices vast amounts of gas that it had contracted years ago to sell to industrial customers such as Borden at low prices.
Borden's lawsuit seeks $200 million actual and $400 million punitive damages from Texaco for breach of contract and violations of the antitrust laws.
The complaint, filed in U.S. District Court in Columbus, Ohio, last month, pits the fifth largest U.S. industrial corporation, Texaco (1979 sales: $38.4 billion), against the 73rd-largest (Borden's 1979 sales: $4.3 billion).
A Texaco spokesman in Harrison, N.Y., said, "We do deny the . . . allegations. We will defend our position in court." The company has until July 15 to file a formal answer, and the spokesman said the deadline will be met.
The dispute arises from a 1972 contract under which Texaco agreed to provide the Borden plant in Geismar, La., with a daily average of up to 80 million cubic feet of natural gas to manufacture products such as urea for fertilizer.
The contract runs until 1983 but has an escape clause: if through no fault of Texaco's, gas becomes "unavailable," supplies can be curtailed or even cut off. Last year, claiming that gas in fact would be unavailable in 1981 and 1982, Texaco served notice on Borden first that supplies would be reduced, and then cut off altogether. The effective date was Dec. 15, 1980.
Borden, under another clause entitling it to retain an accounting firm to verify a claim of unavailability, designated Price Waterhouse & Co. to look at Texaco's records. But Texaco "arbitrarily and unreasonably delayed a full examination," Borden says, adding its suspicions were further aroused by these factors:
Under the contract, the price Borden agreed to pay for 1,000 cubic feet of gas was 29.5 cents initially, but, after a gradual increase, 38.5 cents in 1981 and 39.25 cents in 1982. By contrast, prices six times higher -- ranging from $2.25 to $2.40 - were set in recent contracts negotiated in Louisiana's unregulated market.
Also in Louisiana, Texaco not only is the largest producer, Borden says, but also has proved reserves of 5 trillion cubic feet of gas available to the private pipelines it had built to serve industrial clients, as well as "untold more trillions of cubic feet of probable and possible gas reserves, plus millions of undeveloped acres under lease."
Texaco thus had "every incentive" to plead unavailability of gas in order to "extricate itself" from long-term agreements tying it down to prices "far below" those at which it could sell the committed gas on the open intrastate market.
In 1977, Texaco had invoked gas-unavailability, clauses to reduce or cut off supplies to the Louisiana plants of six other large industrial contract customers, including Agrico Chemical, CIBA-Geigy, Kaiser Aluminum and Chemical and Union Carbide.
Unlike these companies, Borden, facing $200 million in estimated extra costs for gas in 1981 and 1982, decided to fight.
The Borden suit, in addition to casting doubt on Texaco's motives and claims of gas shortages, accuses Texaco of building a case for unavailability partly on rulings by federal agencies that the oil company had violated the Natural Gas Act for 11 years by diverting to its own use 208 billion cubic feet of gas -- enough to supply 1.7 million homes for 12 months.
Texaco had gotten permission from the Federal Power Commission to take the gas from federal offshore fields in Louisiana and sell it to interstate pipelines. Instead, Texaco burned it in its Port Arthur, Tex., refinery.
The FPC learned of the illegal diversion in 1977. Deciding later in the year to reject a staff recommendation to refer the matter to the Justice Department for a possible criminal prosecution the commission instead chose to accept key elements of a proposal by Texaco to "repay" the diverted gas.
Under the proposal, as finally mofified in 1978 by the Federal Energy Regulatory Commission, the FPC's successor, Texaco agreed to draw an equivalent amount of gas from nonfederal land and sell it to interstate customers -- at market prices -- over a 10-year period.
Afterward, thanks to new federal legislation lifting controls on interstate gas, the market price rose sharply, leading experts to estimate last April that Texaco would gross $373 million more from the replacement gas than it would have been paid for the fuel in the diversion period.
The $373 million in extra revenue was only one of the "multiple benefits" that Texaco was able to obtain "from its own illegal acts," Borden charges.
Texaco is discharging its payback obligation with gas that otherwise would have been sold in the intrastate Louisiana market to customers with long-term, fixed-price agreements such as itself, Borden contends. Thus, Borden says, the payback is accelerating depletion of intrastate supplies, allowing Texaco to argue that it lacks the gas to fulfill the agreements.
The supply crunch caused by the payback has been further aggravated by Texaco's failure over the past eight years "to adequately develop" its immense reserves, the suit also contends.