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Commitments and Contingencies
6 Months Ended
Jun. 30, 2026
Commitments and Contingencies  
Commitments and Contingencies

Note 11 - Commitments and Contingencies

 

Fixed Price Arrangements

 

A substantial portion of the Company’s revenues is generated under contracts or blanket purchase orders with commercial customers that expire periodically or must be frequently renegotiated, extended, or replaced from time to time and that often contain fixed prices for product. These arrangements expose the Company to potential risks associated with rising material costs during the term of the applicable contract or blanket purchase order.

 

Legal proceedings

 

The Company has commenced multiple patent infringement lawsuits to enforce its proprietary two-part Sorbent Enhancement Additive (SEA®) process for mercury removal from coal-fired power plants. These actions, filed between 2019 and 2025, target various operators of coal-fired power plants and refined coal producers whom the Company alleges have willfully infringed its patent rights. The Company is seeking damages, injunctive relief, and other remedies in each of these proceedings.

 

Delaware District Court Action

 

In July 2019, the Company initiated patent litigation against various defendants in the U.S. District Court for the District of Delaware which included (i) Vistra Energy Corp., AEP Generation Resources Inc., NRG Energy, Inc., Talen Energy Corporation, and certain of their respective affiliated entities, all of which are owners and/or operators of coal-fired power plants in the United States, and (ii) Arthur J. Gallagher & Co., DTE REF Holdings, LLC, CERT Coal Holdings LLC, Chem-Mod LLC, and certain of their respective affiliated entities, and additional named and unnamed defendants, all of which operated or were involved in operations of coal facilities in the United States.

 

Between July 2020 and January 2021, the Company entered into agreements with each of the four major utility defendants which included certain monetary arrangements and pursuant to which the Company dismissed all claims brought against each of them and their affiliates.

 

In November 2023, the Company entered into a confidential binding term sheet with Arthur J. Gallagher & Co., and various of its affiliated entities, and DTE Energy Resources LLC and various of its affiliated entities, to resolve the patent litigation. Pursuant to the term sheet, all claims and counterclaims asserted by the parties in such patent litigation have been dismissed with prejudice, although such term sheet does not affect any other claim brought against the remaining CERT defendants. In November 2023, Alistar Enterprises, LLC, one of the remaining CERT defendants, entered into a settlement agreement with the Company.

 

In December 2023, and in connection with the term sheet described above, the Company, along with its wholly-owned subsidiary, MES, Inc., and (a) Chem-Mod LLC (“Chem-Mod”), (b) Arthur J. Gallagher & Co. and AJG Coal, LLC, and (c) DTE Energy Co. and DTE Energy Resources, LLC, entered into a paid license of U.S. Patent No. 8,168,147, U.S. Patent No. 10,343,114, U.S. Patent No. 10,589,225, U.S. Patent No. 10,596,517 and U.S. Patent No. 10,668,430 and their foreign equivalents and related patent applications and patents, which licenses the use of refined coal or the Chem-Mod Solution in conjunction with activated carbon. This license applies to Chem-Mod and certain of its licensees, sub-licensees, and their customers, for the remaining term of such patents. By its terms, the license does not cover the use of activated carbon with coal that is not either refined coal or coal made by or for use with the Chem-Mod Solution in a manner authorized by the license. The parties to the license have mutually released all claims that any past use of the Chem-Mod Solution in connection with the production or use of refined coal with activated carbon by entities other than the CERT defendants and their customers infringes the asserted patents and related intellectual property, and all claims that could have been brought challenging the validity of such patents. The remaining CERT defendants and their customers (for activities relating to the CERT defendants) were not included within the scope of the license.

 

The case proceeded to trial in February 2024 against the remaining CERT defendants. On March 1, 2024, a federal jury returned a $57.1 million verdict in favor of the Company against the remaining CERT defendants, finding willful infringement of the Company’s patented technologies and holding the defendants liable for inducing and contributory infringement. Such group of affiliated defendants included multiple limited liability companies with refined coal industry operations, including CERT Operations II LLC, CERT Operations IV LLC, CERT Operations V LLC, and CERT Operations RCB LLC. Following the trial, the Court entered non-final judgments on the verdict against the CERT defendants and the parties submitted post-trial motions relating to the jury trial. The CERT defendants also asserted that the Company’s claims were barred due to their defense that they had an implied license to the asserted patents. A bench trial was held on such issue. On June 10, 2025, the Court ruled that the CERT defendants failed to prove that they had such an implied license and denied their motion to alter or amend the non-final judgment. On September 25, 2025, the Court issued a Memorandum Opinion and Order denying the CERT defendants’ post-trial motion that they should not be held liable as a matter of law for induced infringement, contributory infringement or willful infringement, and on November 20, 2025, the Court issued a Memorandum Opinion and Order denying the CERT defendants’ post-trial motion for a new trial on the issues of induced infringement, contributory infringement, willful infringement and damages. Thereafter, on December 17, 2025, the Court issued a memorandum order granting the Company’s request for pre- and post-judgment interest, and denying the Company’s request for enhanced damages. Following resolution of all post-trial motions, the Court issued the final judgment in favor of the Company on December 29, 2025 in the total amount of $78,397,157, which amount includes pre-judgment interest. The Company accounts for the judgment under ASC 450-30, Contingencies, which does not allow recognition until cash or claims to cash are realized or realizable. The Company did not recognize the judgment as of June 30, 2026 because there were inherent uncertainties associated with the realizability of the judgment.

 

On January 28, 2026, the CERT defendants filed a notice of appeal of the judgment. Under applicable rules, the CERT defendants may seek a stay of execution of the judgment pending appeal by posting a bond or other security in an amount and form approved by the Court. As of the date the unaudited condensed consolidated financial statements were issued, the CERT defendants have not obtained a bonded stay. Although the automatic stay of execution applicable following entry of judgment has expired, the appeal remains pending. Interest continues to accrue on the judgment amount during the pendency of the appeal.

 

2024‑2025 Patent Infringement Actions

 

In July 2024, the Company commenced three additional patent infringement lawsuits in U.S. District Courts in Arizona, Iowa and Missouri against multiple utilities and related entities. These actions allege willful infringement of the Company’s patents related to mercury emissions control. Named as defendants in the action filed in the U.S. District Court for the District of Arizona were Tucson Electric Power Co., San Carlos Resources, Inc., Salt River Project Agricultural Improvement and Power District, Tri-State Generation and Transmission Association, Inc., Springerville Unit 3 Holding LLC, and Springerville Unit 3 Partnership LP. Named as defendants in the action filed in the U.S. District Court for the Southern District of Iowa were Berkshire Hathaway Energy Company, MidAmerican Energy Company, PacifiCorp, Alliant Energy Corporation, Interstate Power and Light Company, and Wisconsin Power and Light Company, and named as defendants in the action filed in the U.S. District Court for the Eastern District of Missouri were Ameren Corp. and Union Electric Co.

 

In October 2024, the Company entered into an agreement with one of the utility defendants and an affiliated entity in the Arizona action, and in January 2025, the Company entered into an agreement with another utility named in the Arizona action. The agreements provide such parties and their affiliates with a non-exclusive license to certain Company patents related to its two-part Sorbent Enhancement Additive (SEA®) process for use at certain designated coal-fired power plant operated by them. The agreements include one-time license fees which have been received by the Company. One agreement provides the Company with a right of first refusal for certain of such utility’s product supply for mercury emissions capture at such designated power plant and the other agreement provides the Company with the right to be included in such party’s bidding process for certain product supply for mercury emissions capture at such party’s designated power plant.

 

On December 17, 2024, the U.S. Judicial Panel on Multidistrict Litigation (the “MDL Panel”) ordered the consolidation of the three lawsuits in the U.S. District Court for the Southern District of Iowa for coordinated pretrial proceedings. In January 2025, the Company commenced an additional infringement suit in the Western District of Missouri against several Evergy-affiliated entities. Named as defendants in the action were Evergy, Inc., Evergy Metro Inc., Evergy Missouri West, Inc. and Evergy Kansas Central, Inc. One of such defendants was dismissed from the Western District of Missouri action and named as a defendant in a separate case commenced in the U.S. District Court for the District of Kansas. Such cases were transferred to the Iowa court pursuant to the existing transfer order.

 

Between January and July 2025, various defendants filed inter partes review (“IPR”) petitions with the U.S. Patent and Trademark Office seeking to invalidate certain asserted patent claims. In September and October 2025, the U.S. Patent Trial and Appeal Board (“PTAB”) instituted review of certain asserted patents. The Company sought Director review of those institution decisions, resulting in partial reconsideration and further PTAB proceedings. Other IPR petitions filed during 2025 were denied institution, and requests for reconsideration of those denials were also denied. On October 13, 2025, the Iowa court stayed the consolidated litigation pending completion of the IPR proceedings.

 

Effective as of August 5, September 9 and September 30, 2025, the Company entered into separate agreements with certain utilities, including utilities named as defendants in the Southern District of Iowa, Western District of Missouri and District of Kansas actions, as well as one utility that was not a defendant in the Company’s patent litigation but was a party to the IPR proceedings. The agreements generally provide the applicable utilities and their affiliates with non-exclusive licenses to certain Company patents related to the Company's two-part SEA® process for use in connection with designated coal-fired power plants in exchange for one-time license fees. The agreements effective as of August 5 and September 30, 2025 also provide the Company with specified bidding rights relating to future product supply opportunities at the designated facilities. In addition, the utilities that were parties to the IPR proceedings agreed to withdraw from the applicable IPR petitions.

 

Effective as of October 15, 2025, the Company entered into an agreement with another utility named as a defendant in the Southern District of Iowa action. While the terms of the agreement are confidential, it includes a resolution of the disputes between the Company and that utility and its affiliates, provides for their withdrawal from related IPR proceedings, and grants a non-exclusive license to certain Company patents related to the Company's two-part SEA® process.

 

Effective as of May 28, 2026, the Company entered into an agreement with another utility named as a defendant in the Southern District of Iowa action together with an affiliated entity previously dismissed from the Iowa action. While the terms of the agreement are confidential, it includes a resolution of the disputes between the Company and that utility and its affiliated entity, provides for the dismissal of all claims among the parties in the Iowa action and their withdrawal from related IPR proceedings, and grants a non-exclusive license to certain Company patents related to the Company's two-part SEA® process. Such parties represent the final remaining entities involved in the IPR proceedings. Under the agreement, the Company was required to make a lump sum payment in the amount of $500,000 (paid) upon execution of the agreement which amount has been paid, and has agreed to make an additional payment of up to $750,000 (accrued) if the Company receives net proceeds of at least $20.0 million from the Delaware litigation, after payment of related legal fees and the Company’s profit-sharing obligation to AC Midwest Energy LLC, as specified in the agreement. During the period ended June 30, 2026, the Company has recorded $1,250,000 as license and settlement fees on the Company’s statement of profit and loss.

 

As a result of the foregoing agreements, the Company has resolved its claims with numerous defendants, all IPR proceedings have concluded, and only one active case remains with one utility in the consolidated Iowa litigation. On July 23, 2026, the Court in Iowa issued its suggestion of remand that the remaining case be returned to its original court in Missouri for all further proceedings, and the MDL Panel has agreed. The Company expects the stay previously issued will be lifted but cannot predict the ultimate outcome of the remaining litigation or the pending appeal of the Delaware action.    

 

Other than the foregoing, there are no material pending legal proceedings to which the Company is a party or of which any of its property is the subject.

 

Litigation, including patent litigation, is inherently subject to uncertainties. As such, there can be no assurance that the Company will be successful in litigating and/or settling any of the remaining claims. The Company expenses legal costs relating to patent litigation as incurred.

 

Contingent Liability

 

The Company is involved in a dispute with a third party related to invoices and other claimed charges in the amount of $184,079 pertaining to reimbursement for certain alleged costs and legal services. The Company disputes these invoices and charges on the basis that the third party was not entitled to reimbursement.

 

As of June 30, 2026, the matter remains unresolved. The Company has evaluated the claim in accordance with ASC 450, Contingencies, and has determined that a loss is possible, but not probable. Accordingly, no liability has been recorded in the accompanying unaudited condensed consolidated financial statements. While the Company intends to vigorously defend its position, an unfavorable outcome could result in a loss of up to approximately $184,079. At this time, the Company is unable to determine the ultimate resolution of this matter.