In re Motor Fuel Temperature Sales Practices Litigation, No. 10-3086 (10th Cir. 2011)
Annotate this CaseAppellants challenged a district court’s discovery order that directed them to disclose what they called privileged information. To achieve this end, the Appellants filed an interlocutory appeal and a petition for writ of mandamus with the Tenth Circuit. The Appellants in this case include motor fuel retailers and the retail motor fuel trade associations to which the retailers belong. The Plaintiffs in this case are consumers and other interested parties. Collectively they filed twelve putative class action cases in seven federal district courts. The Plaintiffs alleged that the retailers’ “volumetric pricing system” for retail motor fuel overcharges customers. When the temperature of the fuel rises, the fuel’s volume expands, but the actual energy content stays the same — customers pay for “more” fuel but half the energy. Plaintiffs allege that the temperature fluctuations and fuel volumes are accounted for in every aspect of the Appellants’ “volumetric pricing system” except at the retail level, thus overcharging retail customers. The Tenth Circuit held that Appellants devoted a majority of their appellate brief to their contention that a First Amendment privilege should be presumed with respect to the information Plaintiffs sought to discover. However, Appellants made an “unwise strategic decision” by seeking a presumption when they failed to prove the information was indeed privileged. The Court dismissed Appellants’ interlocutory appeal and denied their application for writ of mandamus.
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