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In re Western States Wholesale Natural Gas Antitrust Litigation

United States District Court, D. Nevada

November 20, 2017

In re WESTERN STATES WHOLESALE NATURAL GAS ANTITRUST LITIGATION
v.
WILLIAMS COMPANIES. et al., Defendants. REORGANIZED FLI, INC. et al., Plaintiffs, LEARJET, INC. et al., Plaintiffs,
v.
ONEOK, INC. et al., Defendants. SINCLAIR OIL CORP., Plaintiff,
v.
E PRIME INC. et al., Defendants. SINCLAIR OIL CORP., Plaintiff,
v.
ONEOK ENERGY SERVICES CO., L.P., Defendant. BRECKENRIDGE BREWERY OF COLORADO, LLC et al., Plaintiffs,
v.
ONEOK INC. et al., 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.

          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.” Several motions are pending before the Court.

         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. The Court recently ruled on approximately forty motions, including the final group of dispositive motions. Two motions to reconsider and several other motions are pending before the Court.

         II. MOTIONS TO RECONSIDER

         A. Motion No. 2959

         Defendants Xcel Energy Inc. (“Xcel”), Northern States Power Co. (“N. States”), Dynegy Illinois, Inc. (“DII”), DMT GP, LLC (“DMT”), Dynegy GP, Inc. (“DGI”), El Paso Corp. (“El Paso”), and Williams Merchant Services Co. (“Williams”) ask the Court to reconsider denial of their motion for summary judgment in the ‘1019 and ‘915 Cases based on release and/or res judicata via the settlements in a consolidated class action brought in the Southern District of New York, No. 03-cv-6186 (“the NYMEX Case”). The Court granted the motion as to several Defendants but denied the motion as to movants because the Court was not satisfied that movants were parties to the NYMEX Case or parents, subsidiaries, successors, etc. of parties to the NYMEX Case covered by the release. The Court invited the present motions to reconsider if movants could provide such evidence or point out to the Court such evidence already in the record.

         Movants note that the Court reconsidered the release arguments of Xcel, El Paso, and Williams after a previous round of summary judgment motions under similar circumstances. (See Order 2-3, Nov. 16, 2016, ECF No. 2671 (noting that the relevant Plaintiff had affirmatively alleged the corporate relationships at issue in the relevant pleading)). Movants are correct that Plaintiffs in the ‘1019 and ‘915 Cases have also judicially admitted several corporate relationships via their respective pleadings. (See Third Am. Compl. ¶ 25 (Williams), ¶ 45 (El Paso), ¶ 67 (Xcel), ¶ 68 (N. States), ECF No. 1846, attached as Ex. 1 to Mot. Recon., ECF No. 2959; Am. Class Action Compl. ¶ 21 (Williams), ¶ 41 (El Paso), ¶ 68 (Xcel), ¶ 69 (N. States), ECF No. 1953, attached as Ex. 2 to Mot. Recon., ECF No. 2959). The Court therefore finds that Williams, El Paso, Xcel, and N. States were released.

         Movants also adduce the testimony of DII's Rule 30(b)(6) deponent that DII, DMT, and DGI were related to Dynegy Marketing & Trade, which was a “Settling Defendant” in the NYMEX Case. (See Jolley Dep. 49, ECF No. 2959-7 (attesting that DII is the parent of Dynegy Holdings, Inc., which in turn is the parent of DGI, a general partner in Dynegy Marketing & Trade, and that Dynegy Holdings, Inc. also owns DMT)). In other words, DGI was a general partner of a Settling Defendant (Dynegy Marketing & Trade), DII was DGI's “grandparent, ” and DMT shared a parent with DGI. The Court must examine whether these entities are released based on their relationships to Dynegy Marketing & Trade. The relevant language of the release is:

“Released Parties” shall mean the Settling Defendants, the Settling Defendants' predecessors, the Settling Defendants' successors, and the present or former members, principals, officers, directors, employees, agents, assigns, attorneys, insurers, shareholders, advisors, parents, subsidiaries, affiliates, joint ventures, partnerships, and associates (as defined in SEC Rule 12b-2 . . .) of the Settling Defendants, the Settling Defendants' predecessors, and/or the Settling Defendants' successors, in any capacity related to the Settling Defendants and their predecessors and successors, but not in any capacity related to any of the non-settling defendants; and each of their assigns, representatives, heirs, executors, and administrators (and present or former members, principals, officers, directors, employees, agents, assigns, attorneys, insurers, shareholders, advisors, parents, subsidiaries, affiliates, joint ventures, partnerships, or associates of all such parents, subsidiaries, affiliates, joint ventures, partnerships, or associates in any capacity related to the Settling Defendants and their predecessors and successors, but not in any capacity related to any of the non-settling defendants).

(First Settlement Order 4-5 n.3, ECF No. 2300-5).

         First, according to Jolley's testimony, DGI was a partner of Dynegy Marketing & Trade. It was therefore released as a member of a Settling Defendant.

         Second, DII was the parent of the parent of DGI. Under the release, parents of parents of Settling Defendants, as well as parents of members of Settling Defendants, were released. But DII was the parent of a parent (Dynegy Holdings, Inc.) of a member (DGI) of a Settling Defendant (Dynegy Marketing & Trade). There is no language in the release indicating that it is infinitely recursive, i.e., that it includes parents of parents of members, etc., ad infinitum. There is a single recursive clause, “and each of their assigns, representatives . . . .” DII therefore only falls under the definition of “Released Parties” if “parents” under the language of the release was intended to include parents of parents. The Court finds that it was. The term “corporate parent” means “[a] corporation that has a controlling legal interest in another corporation.” Black's Law Dictionary 418 (10th ed. 2014). The essential characteristic of a “parent” entity is its control over the other entity, not the degree to which it is separated from the controlled entity via corporate formalities.

         Third, DMT is a subsidiary of DMT Holdings, which is in turn a subsidiary of Dynegy Holdings, Inc., which in turn is a parent of DGI, which in turn is a member of a Settling Defendant (Dynegy Marketing & Trade). Under the release, subsidiaries of parents of Settling Defendants are released. It would therefore be clear that DMT is released if DGI were itself a Settling Defendant, because DMT is a (grand)subsidiary of DGI's parent (Dynegy Holdings, Inc.). But DGI is not a Settling Defendant. Rather, it is a member of a Settling Defendant (Dynegy Marketing & Trade). The release ...


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