In Re: Western States Wholesale Natural Gas Antitrust Litigation (MDL 1566), No. 2:2003cv01431 - Document 2903 (D. Nev. 2017)
Court Description: FINAL JUDGMENT OF DISMISSAL WITH PREJUDICE AS TO CORAL ENERGY RESOURCES, L.P. re ECF No. 2894 Proposed Order, Signed by Judge Robert C. Jones on 6/5/2017. (Copies have been distributed pursuant to the NEF - DRM)
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In Re: Western States Wholesale Natural Gas Antitrust Litigation (MDL 1566) 1 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 2 3 ) ) ) ) ) ) ) THIS DOCUMENT RELATES TO: ) ) Learjet, Inc., et al. v. ONEOK Inc., et al. ) Heartland Regional Medical Center, et al. v. ) ) ONEOK Inc., et al. ) ) Arandell Corp., et al. v. Xcel Energy, Inc., et ) al. ) ) NewPage Wisconsin System Inc. v. CMS ) Energy Resource Management Co., et al. ) ) IN RE WESTERN STATES WHOLESALE 4 NATURAL GAS ANTITRUST LITIGATION 5 6 7 8 9 10 11 12 13 14 MDL Docket No. 1566 Base Case No. 2:03-cv-01431-RCJ-PAL Case No. 2:06-cv-00233-RCJ-PAL Case No. 2:07-cv-00987-RCJ-PAL Case No. 2:07-cv-01019-RCJ-PAL Case No. 2:09-cv-00915-RCJ-PAL FINAL JUDGMENT OF DISMISSAL WITH PREJUDICE AS TO CORAL ENERGY RESOURCES, L.P. 15 16 Doc. 2903 This matter has come before the Court to determine whether there is any cause why this 17 Court should not approve the settlement between Plaintiffs in the above-captioned Actions on behalf 18 of the Midwest Classes, and Coral Energy Resources, L.P., as succeeded by Shell Energy North 19 America (US), L.P. through merger (“Coral”), as set forth in the Settlement Agreement dated 20 September 1, 2016 (the “Agreement”). The Court, after carefully considering all papers filed and 21 proceedings held herein and otherwise being fully informed in the premises, has determined (1) that 22 the settlement should be approved, and (2) that there is no just reason for delay of the entry of this 23 Final Judgment approving the Agreement. Accordingly, the Court directs entry of Judgment which 24 shall constitute a final adjudication of the above-captioned Actions on the merits in accordance with 25 the terms of the Agreement. Good cause appearing therefor, it is: 26 ORDERED, ADJUDGED AND DECREED THAT: 27 1. The Court has jurisdiction over the subject matter of the Actions and over all parties 28 to the Agreement, including all members of the Midwest Classes based upon the Court’s findings 55124961.1 Dockets.Justia.com 1 and conclusions herein that such settlement class members have been afforded the due process 2 protections of notice, an opportunity to be heard, a right to exclude themselves from the Midwest 3 Classes and adequate representation. Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985). 4 2. All terms which are defined in the Agreement and used but not otherwise defined 5 herein shall have the meanings ascribed to them in the Agreement, all of which are incorporated 6 herein as though fully set forth in this Final Judgment. 7 3. By its Preliminary Approval Order, the Court certified, for purposes of settlement 8 only, these Actions as class actions against Coral under Federal Rule of Civil Procedure 23(b)(3). 9 The Classes are defined as follows: 10 A. 11 12 13 14 15 16 For purposes of the Kansas Class definition, a “direct purchaser” means an industrial or commercial entity that bought natural gas for its own use or consumption directly from any of the defendants in the Actions, or from a seller other than a local distribution company. 17 18 19 20 “Kansas Class” means: All industrial and commercial direct purchasers of natural gas for their own use or consumption during the period from January 1, 2000 through October 31, 2002, and which gas was used or consumed by them in Kansas. Excluded from the Class are (a) entities that purchased natural gas for resale (to the extent of such purchase(s) for resale); (b) entities that purchased natural gas for generation of electricity for the purpose of sale (to the extent of such purchase(s) for generation); (c) defendants and their predecessors, affiliates, and subsidiaries; (d) the federal government and its agencies; and (e) Reorganized FLI, Inc. (f/k/a Farmland Industries, Inc.). B. 21 22 23 24 25 26 “Missouri Class” means: All industrial and commercial direct purchasers of natural gas for their own use or consumption during the period from January 1, 2000 through October 31, 2002, and which gas was used or consumed by them in Missouri. Excluded from the Class are (a) entities that purchased natural gas for resale (to the extent of such purchase(s) for resale); (b) entities that purchased natural gas for generation of electricity for the purpose of sale (to the extent of such purchase(s) for generation); (c) defendants and their predecessors, affiliates, and subsidiaries; (d) the federal government and its agencies; and (e) Reorganized FLI, Inc. (f/k/a Farmland Industries, Inc.). For purposes of the Missouri Class definition, a “direct purchaser” means an industrial or commercial entity that bought natural gas for 27 28 -255124961.1 1 its own use or consumption directly from any of the defendants in the Actions, or from a seller other than a local distribution company. 2 3 C. “Wisconsin Class” means: All industrial and commercial purchasers of natural gas for their own use and consumption during the period from January 1, 2000 through October 31, 2002, 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(s) for resale); (b) entities that purchased natural gas for generation of electricity for the purpose of sale (to the extent of such purchase(s) for generation); (c) entities that purchased natural gas from entities that sold natural gas at rates approved by a State regulatory entity or public service commission (to the extent of such purchases at such approved rates); (d) defendants and their predecessors, affiliates and subsidiaries; (e) the federal government and its agencies; and (f) Reorganized FLI, Inc. (f/k/a Farmland Industries, Inc.). D. “Midwest Classes” means, collectively, the Kansas Class, the Missouri Class, and the 4 5 6 7 8 9 10 11 12 13 Wisconsin Class. 14 E. “Class Member” means each member of any one or more of the Midwest Classes. 15 F. “Class Period” means, with respect to each of the Midwest Classes, the period from 16 17 January 1, 2000 through October 31, 2002. 4. The Actions are, for settlement purposes, certified as class actions against Coral 18 pursuant to Rule 23(a) and (b)(3) of the Federal Rules of Civil Procedure for each and all of the 19 Midwest Classes defined in paragraph 3 above and with respect to the Class Period defined in 20 paragraph 3 above. Certification of the Midwest Classes is appropriate because: 21 a. The Court finds that the requirements of Rule 23(a) of the Federal Rules of Civil 22 Procedure have been met: 23 (i) 24 The Midwest Classes, are so numerous that joinder of all members is impracticable; 25 (ii) 26 The Plaintiffs’ claims against Coral and the defenses thereto present questions of law or fact common to the Midwest Classes; 27 (iii) 28 The claims against Coral brought by the Plaintiffs in the Actions, as industrial and commercial purchasers of natural gas for their own use and consumption -3- 55124961.1 1 during the Class Period, are typical of the claims of, or defenses to the claims 2 of, members of the Midwest Classes against Coral; (iv) 3 Class Counsel for the Midwest Classes have fairly, adequately and vigorously 4 represented the interests of the Midwest Classes as respects claims against 5 Coral; and (v) 6 Based on their active participation in discovery and the settlement, the 7 Plaintiffs in the Actions have fairly, adequately and vigorously represented the 8 interests of the Midwest Classes as respects Coral. 9 b. The Court finds that the requirements of Rule 23(b)(3) of the Federal Rules of Civil 10 Procedure have been met: 11 (i) Questions of law or fact relating to whether Coral engaged in false or 12 inaccurate reporting of natural gas transactions to the publishers of natural gas 13 price indexes, or engaged in other unlawful conduct including natural gas 14 wash trading or churning transactions, in furtherance of a conspiracy to 15 manipulate prices for natural gas during the Class Period predominate over 16 any questions affecting only individual members of any of the Midwest 17 Classes; (ii) 18 There are no competing actions or any suggestions that a more efficient 19 alternative to the Actions against Coral exists, and the Actions are the superior 20 method for the fair and efficient adjudication of this controversy; and (iii) 21 Manageability for trial purposes is not an issue and need not be considered in 22 determining whether to certify the Midwest Classes herein for purposes of 23 settlement. See Amchem v. Windsor, 512 U.S. 591, 619 (1997). 24 c. desirable to facilitate resolution of complex litigation such as this litigation. 25 26 Certification of class actions, such as the Actions, for the purpose of settlement, is 5. The Court hereby finally approves and confirms the settlement set forth in the 27 Agreement and finds that said settlement is, in all respects, fair, reasonable, and adequate to the 28 Midwest Classes pursuant to Rule 23 of the Federal Rules of Civil Procedure. In reaching this -455124961.1 1 determination, the Court has, based upon the evidence presented and its independent inquiry, 2 analysis and due diligence, considered: the serious questions of fact and law raised by Plaintiffs’ 3 claims and Coral’s potential defenses in the Actions; the risk, expense, complexity, and likely 4 duration of further litigation; the risk of obtaining, and maintaining throughout trial and potential 5 appeal, class action status; the benefits of the settlement; the extent of discovery completed and the 6 stage of the proceedings; the experience and views of counsel that the settlement is fair and 7 reasonable; and the reaction(s) of the Midwest Class members to the settlement (both as to the 8 number of requests for exclusion from the Midwest Classes and as to the number and nature of the 9 objections to the settlement). 10 6. The Court hereby finds and concludes that the notice given to the Midwest Classes 11 complied with this Court’s Preliminary Approval Order , and that said notice was the best notice 12 practicable under the circumstances and fully satisfies the requirements of Rule 23 of the Federal 13 Rules of Civil Procedure and the requirements of due process, including, but not limited to, the form 14 of notice and methods of identifying and giving notice to the Midwest Classes of, inter alia, the 15 settlement terms, their rights to object to or exclude themselves from the settlement (and the 16 procedures to do so), and the Fairness Hearing. 17 7. Pursuant to Fed. R. Civ. P. 23(g), Polsinelli PC, McCallister Law Group, LLC, and 18 Barry Law Offices, LLC are appointed as co-counsel for the Kansas Class; Polsinelli PC and Barry 19 Law Offices, LLC are appointed as co-counsel for the Missouri Class, and Polsinelli PC, Kohner, 20 Mann & Kailas S.C., and Barry Law Offices, LLC are appointed as co-counsel for the Wisconsin 21 Class. These firms have and will fairly, adequately, vigorously and competently represent the 22 interests of the Midwest Classes. In particular, the Court finds that the Agreement is the result of 23 extensive, good-faith arm’s-length negotiations between the parties, and not the result of any 24 collusion or reverse auction. 25 8. As of the April 11, 2017 deadline designated in this Court’s Preliminary Approval 26 Order, no persons/entities requested exclusion from the Midwest Classes. Because no member of 27 any of the Midwest Classes submitted a timely and valid request, or indeed, any request, for 28 exclusion from the Midwest Classes, all members of any of the Midwest Classes are hereby (i) -555124961.1 1 barred from asserting otherwise and (ii) bound by the terms of the Agreement, including the releases 2 of claims, and by this Final Judgment. 3 9. There were no objections filed to this settlement. Any member of the Midwest 4 Classes who failed to object or seek to intervene is conclusively deemed to have waived the right to 5 object or intervene and is barred from raising any objection to the settlement or this Final Judgment 6 in this or any other proceeding, including in an appeal. 7 10. This Court hereby dismisses on the merits and with prejudice, with each party to bear 8 its own costs and attorneys’ fees, these Actions as against Coral and as to all members of any of the 9 Midwest Classes. 10 11. Pursuant to paragraph 20 of the Agreement, the Releasees are hereby and forever 11 released and discharged from and with respect to any and all claims, demands, actions, suits, causes 12 of action for injuries, losses, damages or other consequences of every nature (whether known or 13 unknown, foreseen or unforeseen, suspected or unsuspected, actual or contingent, liquidated or 14 unliquidated, legal or equitable) that Releasors or any of them ever had, now has, or hereafter can, 15 shall, or may have in any capacity (whether class, individual, direct, derivative, representative or any 16 other capacity) on account of, or in any way arising out of, or relating in any way to any act or 17 omission of the Releasees or the other named defendants/alleged co-conspirators or any third party 18 alleged co-conspirators (or any of them) that is alleged in the Actions up to the date of the execution 19 of this Agreement or that could have been alleged in the Actions or in any other proceeding alleging 20 such acts or omissions (the “Released Claims”). All persons and entities who are Releasors are 21 hereby barred and permanently enjoined from commencing, prosecuting or continuing, either 22 directly or indirectly, against any of the Releasees, in this or any other jurisdiction, any and all 23 Released Claims and any other claims arising from any conduct alleged in any of the Actions. The 24 Released Claims shall not preclude Plaintiffs from pursuing any and all claims against any 25 defendants in the Actions other than Coral. Likewise, the Released Claims shall not impede 26 Plaintiffs’ rights to pursue claims against the non-settling defendants to recover for the full amount 27 of Plaintiffs’ and Class Members’ alleged damages as provided by applicable law. 28 -655124961.1 1 12. Neither the Agreement, the preliminary approval of the settlement and conditional 2 certification for settlement purposes of the Midwest Classes, nor this Final Judgment (nor any 3 negotiations or documents associated with them) are to be deemed an admission of liability or fault 4 by Coral or by any of the Releasees, or a finding of the validity of any facts, allegations or claims 5 asserted in the Actions, or of any wrongdoing or of any violation of law by Coral or any of the 6 Releasees, or that any person has suffered any damage attributable to Coral or any of the Releasees, 7 or an admission by Coral or any of the Releasees as to the certifiability of a litigation class in the 8 Actions or in any other case. Neither the Agreement, nor any of its terms and provisions, nor any of 9 the negotiations or proceedings connected with it, nor any other action taken to carry out the 10 Agreement by any of the settling parties shall be referred to, offered as evidence or received in 11 evidence in any pending or future civil, criminal, or administrative action or proceedings, except in a 12 proceeding to enforce the Agreement, or to defend against the assertion of Released Claims, or as 13 otherwise required by law. 14 13. If for any reason this Final Judgment does not become “final” as provided in 15 paragraph 17 of the Agreement, and if either Coral or Plaintiffs thereafter exercise their unilateral 16 option(s) to rescind the settlement, terminate the Agreement and withdraw that Party’s consent to the 17 entry of this Final Judgment, then: (i) any preliminary or final certification of the Midwest Classes 18 shall be automatically vacated, nunc pro tunc; (ii) all other provisions set forth in paragraph 16 of 19 the Agreement shall apply; and (iii) any and all amounts paid by Coral into the Settlement Fund 20 and/or deposited in the Escrow Account (including interest earned thereon) shall be returned to Coral 21 within thirty (30) calendar days, less only disbursements made in accordance with paragraphs 23 and 22 24 of the Agreement. 23 14. Without affecting the finality of this Judgment in any way, this Court hereby retains 24 continuing jurisdiction over: (a) implementation of this settlement and any distribution to Class 25 Members pursuant to further orders of this Court; (b) disposition of the Settlement Fund; (c) hearing 26 and determining applications by Plaintiffs’ counsel for attorneys’ fees, costs, expenses, and interest; 27 (d) the Actions until the Final Judgment contemplated hereby has become effective and each and 28 every act agreed to be performed by the parties has been performed pursuant to the Agreement; -755124961.1 1 (e) hearing and ruling on any matters relating to the plan of allocation of settlement proceeds; and 2 (f) all parties to the Actions and Releasors, for the purpose of enforcing and administering the 3 Agreement and the releases and other documents contemplated by, or executed in connection with, 4 the Agreement. 5 15. The Court finds, pursuant to Rules 54(a) and (b) of the Federal Rules of Civil 6 Procedure, that this Final Judgment should be entered and further finds that there is no just reason 7 for delay in the entry of this Judgment, as a Final Judgment, as to the parties to the Agreement. 8 Accordingly, the Clerk is hereby directed to enter Judgment forthwith. 9 16. Nothing in this Order shall be construed to expand the obligations of Coral under the 10 Agreement or to impose on Coral any obligations other than those contained in the Agreement. 11 12 IT IS SO ORDERED. 13 14 Dated: ___________________________ June 5, 2017 15 _______________________________________ Hon. Robert C. Jones United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 -855124961.1
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