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In re Western States Wholesale Natural Gas Antitrust Litigation

United States District Court, D. Nevada

August 22, 2017

In re WESTERN STATES WHOLESALE NATURAL GAS ANTITRUST LITIGATION
v.
WILLIAMS COMPANIES, et al., Defendants. REORGANIZED FLI, INC., et al., Plaintiffs, LEARJET, INC., Plaintiffs,
v.
ONEOK, INC., et al. Defendants. SINCLAIR OIL CORP., Plaintiff,
v.
E PRIME INC., et al. Defendants. SINCLAIR OIL CORP., et al. Plaintiff,
v.
ONEOK ENERGY SERVICES CO., L.P., et al. Defendant. BRECKENRIDGE BREWERY OF COLORADO, LLC, Plaintiffs,
v.
ONEOK INC., Defendants. HEARTLAND REGIONAL MEDICAL CENTER, et al. Plaintiffs,
v.
ONEOK, INC., et al. Defendants. ARANDELL CORP., et al. Plaintiffs,
v.
XCEL ENERGY INC., et al. Defendants. NEWPAGE WISCONSIN SYSTEM INC., Plaintiff,
v.
CMS ENERGY RESOURCE MANAGEMENT CO., et al. Defendants. Nos. 2:03-cv-01431-RCJ-PAL, 2:05-cv-01331-RCJ-PAL, 2:06-cv-00233-RCJ-PAL, 2:06-cv-00267-RCJ-PAL, 2:06-cv-00282-RCJ-PAL, 2:06-cv-01351-RCJ-PAL, 2:07-cv-00987-RCJ-PAL

          ORDER

          ROBERT C. JONES UNITED STATES DISTRICT JUDGE

         These consolidated cases arise out of the energy crisis of 2000-2002. Plaintiffs (retail buyers of natural gas) allege that Defendants (natural gas traders) manipulated the price of natural gas by reporting false information to price indices published by trade publications and by engaging in "wash sales." Approximately forty motions are pending before the Court, including the final group of dispositive motions before remand to the transferor districts for trial.

         I. PROCEDURAL HISTORY

         In 2003, the Judicial Panel on Multidistrict Litigation ("JPML") transferred seven class action cases from various districts in California to this District under 28 U.S.C. § 1407 as Multidistrict Litigation ("MDL") Case No. 1566, assigning Judge Pro to preside. Since then, the JPML has transferred in several more actions from various districts throughout the United States. Between 2003 and 2015, Judge Pro ruled on many motions to remand, to dismiss, and for summary judgment. He also approved several class settlements. Several parties settled on their own. One or more of the cases have been to the Court of Appeals twice and to the Supreme Court once. In 2007, the Court of Appeals reversed several dismissals under the filed rate doctrine and remanded for further proceedings. In 2013, the Court of Appeals reversed several summary judgment orders, ruling that the Natural Gas Act did not preempt state law anti-trust claims and that certain Wisconsin- and Missouri-based Defendants should not have been dismissed for lack of personal jurisdiction. The Supreme Court granted certiorari as to preemption under the Natural Gas Act and affirmed. The case was soon thereafter reassigned to this Court when Judge Pro retired. The Court has issued several dispositive orders and has denied class certification in applicable cases. Eight of the eighteen consolidated cases remain open, the others having been variously settled, dismissed, or remanded to state courts.

         II. MOTIONS TO RECONSIDER

         Plaintiff Sinclair Oil Corp. asks the Court to correct an alleged clerical error in the Court's March 30, 2017 order. In the introduction to its ruling on cross-motions for summary judgment on the issue of release, the Court wrote that material issues of fact remained as to whether Sinclair Oil had received sufficient notice of the settlements in the NYMEX case. But the Court thereafter closely analyzed the issue, finding that the release indeed precluded the present claims and that there had been sufficient notice of the settlements. Defendant ONEOK Energy Services Co., L.P. ("OESC") has responded that it has no objection to a clarification to the effect that the Court misspoke in its introductory remarks but intended to grant its motion (and the joinder thereto filed by Defendants e prime, inc. and Xcel Energy Inc.[1]), as indicated in both the analysis following the introduction and the "conclusion" section of the order. Defendants are correct. The Court will amend the previous order under Rule 60(a) to remove the final sentence of the first paragraph of Part III.B.

         III. SUMMARY JUDGMENT MOTIONS

         A court must grant summary judgment when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). Material facts are those which may affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. See Id. A principal purpose of summary judgment is "to isolate and dispose of factually unsupported claims." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).

         In determining summary judgment, a court uses a burden-shifting scheme. The moving party must first satisfy its initial burden. "When the party moving for summary judgment would bear the burden of proof at trial, it must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial." C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) (citation and internal quotation marks omitted). In contrast, when the nonmoving party bears the burden of proving the claim or defense, the moving party can meet its burden in two ways: (1) by presenting evidence to negate an essential element of the nonmoving party's case; or (2) by demonstrating that the nonmoving party failed to make a showing sufficient to establish an element essential to that party's case on which that party will bear the burden of proof at trial. See Celotex Corp., 477 U.S. at 323-24.

         If the moving party fails to meet its initial burden, summary judgment must be denied and the court needn't consider the nonmoving party's evidence. See Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970). If the moving party meets its initial burden, the burden then shifts to the nonmoving party to establish a genuine issue of material fact. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). To establish the existence of a factual dispute, the nonmoving party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T. W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass 'n, 809 F.2d 626, 631 (9th Cir. 1987). In other words, the nonmoving party cannot avoid summary judgment by relying solely on conclusory allegations unsupported by facts. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Instead, the opposition must go beyond the assertions and allegations of the pleadings and set forth specific facts by producing competent evidence that shows a genuine issue for trial. See Fed. R. Civ. P. 56(e); Celotex Corp., 477 U.S. at 324.

         At the summary judgment stage, a court's function is not to weigh the evidence and determine the truth, but to determine whether there is a genuine issue for trial. See Anderson, Ml U.S. at 249. The evidence of the nonmovant is "to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255. But if the evidence of the nonmoving party is merely colorable or is not significantly probative, summary judgment may be granted. See Id. at 249-50. Notably, facts are only viewed in the light most favorable to the nonmoving party where there is a genuine dispute about those facts. Scott v. Harris, 550 U.S. 372, 380 (2007). That is, even where the underlying claim contains a reasonableness test, where a party's evidence is so clearly contradicted by the record as a whole that no reasonable jury could believe it, "a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment." Id.

         A. Motions Nos. 2745, 2764

         Responses to these motions are due two weeks after completion of depositions of certain expert witnesses. (See Orders, ECF Nos. 2786, 2797). Those depositions were expected to have been completed by March 10, 2017. (See Order No. 2786). No responses to Motions Nos. 2745 or 2764 appear to have been filed, however. The Court will therefore deny those motions without prejudice at this time.

         B. Motion No. 2740

         Defendants in the '233 Case have moved for summary judgment against the "full consideration" remedy under Kansas law. Defendants note that the Kansas Restraint of Trade Act ("KRTA") was amended in 2013 to replace the "full consideration" measure of damages with a triple damages remedy. Compare Kan. Stat. Ann. § 50-115 (repealed), with Id. § 50- 161(b) (2013). The question is whether the amendment applies retroactively to claims arising before the amendment. Defendants are correct that under Kansas law, changes to substantive rights apply only prospectively, but changes to remedies alone apply retroactively:

It is the law of this state that a statute which merely changes a remedy is not invalid, as there are no vested rights in any particular remedy. While generally statutes will not be construed to give them retroactive application unless it appears that such was the legislative intent, nevertheless when a change of law merely affects the remedy or law of procedure, all rights of action will be enforced under the new procedure without regard to whether they accrued before or after such change of law and without regard to whether or not the suit has been instituted, unless there is a saving clause as to existing litigation.

Jones v. Garrett, 386 P.2d 194, 199 (Kan. 1963); accord Nitchals v. Williams, 590 P.2d 582, 587 (Kan. 1979). Defendants note that two courts to address the retroactivity of the repeal of the "full consideration" remedy have found that the repeal is retroactive under Kansas law. See In re Polyurethane Foam Antitrust Litig., 998 F.Supp.2d 625, 640 (N.D. Ohio 2014); Assoc. Wholesale Grocers, Inc. v. United Egg Producers, No. 10-cv-2171, at 4 (Kan. Dist. Ct., Wyandotte Cnty. Oct. 3, 2013).

         Plaintiffs respond that the amendment to KTRA disclaimed any retroactive effect, i.e., that it contains a saving clause of the type mentioned by the Jones Court. The Court disagrees. The saving clause applies only to causes of action themselves, not to remedies:

K.S.A. 50-163 and the amendments to K.S.A. 50-101 and 50-112 by this act shall be applied retroactively to any choses in action or defenses premised on any provision of the Kansas restraint of trade act amended or repealed by this act, and any such choses in action or defenses that have accrued as of the effective date of this act shall be abated, but causes of action that were pending in any court before the effective date of this ...

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