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In re Western States Wholesale Natural Gas Antitrust Litigation

United States District Court, D. Nevada

April 5, 2019

IN RE WESTERN STATES WHOLESALE NATURAL GAS ANTITRUST LITIGATION
v.
Xcel Energy, Inc., et al. THIS DOCUMENT RELATES TO Arandell Corp., et al. NewPage Wisconsin System Inc.
v.
CMS Energy Resource Management Co., et al.

          ORDER PRELIMINARILY CERTIFYING SETTLEMENT CLASSES, APPROVING CLASS SETTLEMENT, APPROVING CLASS NOTICE AND SETTING DATE FOR FAIRNESS HEARING

          Hon. Robert C. Jones United States District Judge

         The motion of the Plaintiffs in the above-captioned actions (the “Actions”) for separation of claims and for preliminary approval of the terms and conditions (the “Settlements”) in the following Settlement Agreements (collectively, the “Agreements”) has come before this Court:

(i) the Settlement Agreement dated February 1, 2019 entered into between Plaintiffs and El Paso Corporation (n/k/a El Paso LLC) and El Paso Merchant Energy, L.P. (n/k/a El Paso Marketing Company, L.L.C.) (collectively “El Paso Defendants”); and
(ii) the Settlement Agreement dated February 1, 2019 entered into between Plaintiffs and CenterPoint Energy Services, Inc., (“CenterPoint Defendant”);

         The El Paso Defendants, and CenterPoint Defendant are hereinafter referred to collectively as the “Settling Defendants.” Plaintiffs and the Settling Defendants are hereinafter referred to collectively as the “Parties.”

         The Court, after carefully considering the motion and all papers filed and proceedings held herein, including the Agreements and proposed Notice Plan, for good cause HEREBY FINDS AND ORDERS THE FOLLOWING:

         1. The Parties include plaintiffs Arandell Corporation, Merrick's Inc., Sargento Foods Inc., Ladish Co. Inc. (n/k/a ATI Ladish LLC), Carthage College, Briggs & Stratton Corporation, and NewPage Wisconsin System Inc. (n/k/a Verso Minnesota Wisconsin LLC) (collectively hereinafter, “Plaintiffs”), both individually and on behalf of proposed settlement classes of industrial and commercial purchasers of natural gas for their own use or consumption in the State of Wisconsin, as more particularly defined in Paragraph 4 of this Order, and other affiliated Releasors defined in the Agreements, along with the Settling Defendants and other affiliated Releasees as defined in the Agreements.

         2. This Court entered a Suggestion of Remand on January 14, 2019 (ECF No. 3105). However, as the Court finds that it will promote the convenience of the parties and the just and efficient conduct of the Actions, the claims in the Actions against El Paso, CenterPoint, and Reliant (Reliant Energy, Inc. (n/k/a GenOn Energy, Inc.), and Reliant Energy Services, Inc. (n/k/a RRI Energy Services, LLC)), are separated from the claims against the remaining defendants. With respect to El Paso and CenterPoint, this Court finds that it will avoid delay and facilitate prompt distribution of the settlement funds to class members if this Court (which has overseen multiple class settlements in this MDL) retains jurisdiction over the claims against these settling defendants. Further, because the CenterPoint settlement is linked to a separate settlement involving the bankrupt entity Reliant and eventual dismissal of the claims against Reliant in the Actions, this Court finds that it will avoid delay and facilitate the completion of the CenterPoint settlement and distribution of the CenterPoint settlement funds to class members if this Court retains jurisdiction over the claims in the Actions against Reliant as well. Thus, this Court requests that the Judicial Panel on Multidistrict Litigation (“JPML”) allow this Court to retain jurisdiction over the claims in this Action against El Paso, CenterPoint and Reliant. This Court amends its Order of January 14, and suggests remand of the claims against the remaining defendants other than El Paso, CenterPoint and Reliant. The Plaintiffs may file this Order with the JPML.

         3. The Agreements are incorporated by reference in this Order. All terms which are defined in the Agreements and used but not otherwise defined herein shall have the meanings ascribed to them in the Agreements.

         4. For purposes of determining whether the Agreements should be preliminarily approved, the Court conditionally certifies, for purposes of settlement only, pursuant to Rules 23(a) and (b)(3) of the Federal Rules of Civil Procedure 23(b)(3), the Class defined as follows:

All industrial and commercial purchasers of natural gas for their own use or consumption during the Relevant Time Period, and which gas was used or consumed by them in Wisconsin. Excluded from the Class are (a) entities that purchased natural gas for resale (to the extent of such purchase for resale); (b) entities that purchased natural gas for generation of electricity for the purpose of sale (to the extent of such purchase for generation); (c) entities that purchased natural gas from entities that sold natural gas at rates approved by the Wisconsin Public Service Commission (to the extent of such purchases at such approved rates); (d) defendants and their predecessors, affiliates and subsidiaries; and (e) the federal government and its agencies.

         5. “Class Period” means, with respect to each of the Midwest Classes, the period from January 1, 2000, through October 31, 2002.

         6. The Court preliminarily finds that the Settlements set forth in the Agreements: (i) resulted from extensive, good-faith, arms-length negotiations between the Parties, conducted after Class Counsel as defined herein had conducted adequate investigation and discovery; and (ii) are sufficiently fair, reasonable and adequate to the Wisconsin Class to warrant providing notice in accordance with the Notice Plan described in the Motion for Preliminary Approval and thereafter conducting the final Fairness Hearing as described in Paragraph 11, below.

         7. The Actions are, for settlement purposes only, certified as class actions against the Settling Defendants pursuant to Rule 23(a) and (b)(3) of the Federal Rules of Civil Procedure for the Wisconsin Class and with respect to the Class ...


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