Reorganized FLI, Inc. v. Williams Cos., Case No. 05-CV-02389-JAR-GEB

• Citation: 410 F.Supp.3d 1213
• Decision Date: 15 October 2019
• Docket Number: Case No. 05-CV-02389-JAR-GEB
• Parties: REORGANIZED FLI, INC., Plaintiff, v. The WILLIAMS COMPANIES, INC.; Dynergy Marketing & Trade; CMS Energy Corporation; CMS Marketing Services & Trading Company ; CMS Field Services, Defendants.
• Court: United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas

410 F.Supp.3d 1213

REORGANIZED FLI, INC., Plaintiff,

v.The WILLIAMS COMPANIES, INC.; Dynergy Marketing & Trade; CMS Energy Corporation; CMS Marketing Services & Trading Company ; CMS Field Services, Defendants.

Case No. 05-CV-02389-JAR-GEB

United States District Court, D. Kansas.

Signed October 15, 2019

Donald D. Barry, Barry Law Offices, LLC, Eric I. Unrein, Cavanaugh, Biggs & Lemon, PA, Topeka, KS, Gary D. McCallister, McCallister Law Group, LLC, Chicago, IL, Isaac L. Diel, Sharp McQueen, PA, Overland Park, KS, Kevin J. Miller, Pro Hac Vice, Michael J. Guzman, Pro Hac Vice, T. Dietrich Hill, Pro Hac Vice, Kellogg, Hansen, Todd, Figel & Frederick, PLLC, Washington, DC, Thomas J. H. Brill, Law Office of Thomas H. Brill, Leawood, KS, for Plaintiff.

Mitchell F. Engel, Steven D. Soden, Tristan L. Duncan, Shook, Hardy & Bacon LLP, Patrick N. Fanning, PEAK Litigation, LLP, Victoria L. Smith, Stinson, LLP, Kansas City, MO, Edwin McAllister Buffmire, Pro Hac Vice, Jackson Walker, LLP, Dallas, TX, Jay K. Wieser, Pro Hac Vice, Jackson Walker, LLP, Fort Worth, TX, Joseph August Fischer, III, Pro Hac Vice, Jackson Walker, LLP, Houston, TX, Sean A. Commons, Sidley Austin LLP, Los Angeles, CA, Theodore R. Scarborough, Sidley Austin LLP, Chicago, IL, for Defendants.

MEMORANDUM AND ORDER

JULIE A. ROBINSON, CHIEF UNITED STATES DISTRICT JUDGE

Plaintiff Reorganized FLI, Inc., filed suit in 2005 against multiple defendants alleging violation of the Kansas Restraint of Trade Act ("KRTA"). Plaintiff sought full consideration damages, or a full refund of its gas purchases, under K.S.A. § 50-115. That statute was repealed in 2013. Defendants jointly seek summary judgment arguing that the repeal of § 50-115 operates retroactively and thus Plaintiff can no longer obtain full consideration damages, foreclosing Plaintiff's claim (Doc. 52). Because the Court determines that § 50-115 does not operate retroactively, and for the reasons stated in more detail below, the Court denies Defendants' motion.

I. Summary Judgment Standard

Summary judgment is appropriate if the moving party demonstrates that there is no genuine dispute as to any material fact and that it is entitled to judgment as a matter of law.¹ In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party.² "There is no genuine issue of material fact unless the evidence, construed in the light most favorable to the nonmoving party, is such that a reasonable jury could return a verdict for the nonmoving party."³ A fact is "material" if, under the applicable substantive law, it is "essential to the proper disposition of the claim."⁴ An issue of fact is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the non-moving party."⁵

The moving party initially must show the absence of a genuine issue of material fact and entitlement to judgment as a matter of law.⁶ Once the movant has met this initial burden, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial."⁷ The nonmoving party may not simply rest upon its pleadings to satisfy its burden.⁸ Rather, the nonmoving party must "set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant."⁹ To accomplish this, the facts "must be identified by reference to an affidavit, a deposition transcript[,] or a specific exhibit incorporated therein."¹⁰ The non-moving party cannot avoid summary judgment by repeating conclusory opinions, allegations unsupported by specific facts, or speculation.¹¹

Finally, summary judgment is not a "disfavored procedural shortcut;" on the contrary, it is an important procedure "designed ‘to secure the just, speedy and inexpensive determination of every action.’ "¹² In responding to a motion for summary judgment, "a party cannot rest on ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial."¹³

II. Uncontroverted Facts

The following material facts are uncontroverted, stipulated to, or viewed in the light most favorable to Plaintiff as the nonmoving party.

Plaintiff filed this case in 2005 in Wyandotte County District Court. Defendants removed the case to this Court. The case then proceeded in multi-district litigation in the District of Nevada for approximately 14 years. In May 2019, the case was remanded back to this Court.

Plaintiffs allege that Defendants violated the KRTA. Pursuant to K.S.A. § 50-115, Plaintiff seeks full consideration damages. Prior to 2013, § 50-115 stated that "any person injured or damaged by any such arrangement, contract, agreement, trust or combination, described in K.S.A. 50-112 ... may sue for and recover ... the full consideration of sum paid by such person." In 2013, the Kansas legislature amended the KRTA and repealed § 50-115, effective April 18, 2013. Defendants now seek summary judgment asserting that Plaintiff no longer has a claim because Plaintiff only seeks full consideration damages under § 50-115, and the repeal of § 50-115 operates retroactively.

III. Discussion

There is no dispute that prior to 2013, and when Plaintiff filed this case in 2005, full consideration damages were available under the KRTA's provision, § 50-115. The parties disagree as to whether full consideration damages are still available. In resolving this issue, it is well settled that this Court must attempt to ascertain and apply state law, which in this case is the law of Kansas.¹⁴ The Court must look to the rulings of the state's highest court and, where no controlling state decision exists, the Court must endeavor to predict how the state's highest court would rule.¹⁵ The Court should consider analogous decisions by the state supreme court, decisions of lower courts in the state, decisions of federal and other state courts, and the general weight and trend of authority.¹⁶ Ultimately, the Court's task is to predict what decision the Kansas Supreme Court would make if faced with the same facts and issue.¹⁷ A brief background on the statutory history, Kansas law, and cases addressing the KRTA is necessary.

A. Statute Changes

In 2013, the Kansas legislature enacted "substantial changes to the KRTA."¹⁸ The changes included:

(1) The repeal of the full-consideration damages provision in K.S.A. 50-115, which allowed a successful plaintiff to recover the full consideration paid for goods "controlled in price by such combination" [ ]; (2) a declaration that provisions of the KRTA shall be "construed in harmony" with the United States Supreme Court's interpretations of federal antitrust law; and (3) permitting a rule-of-reason analysis by an explicit allowance for "reasonable restraint[s] of trade or commerce."¹⁹

Prior to 2013, the KRTA contained several damages provisions, including § 50-108 providing for actual damages, § 50-115 providing for full consideration damages, and § 50-161 providing for treble damages. As noted by the Kansas Supreme Court in the 2012 case, O'Brien v. Leegin Creative Leather Products, Inc. , "[f]or persons injured or damaged by price-fixing prohibited under K.S.A. 50-101 and K.S.A. 50-112, recovery of damages sustained, full consideration damages, and treble damages are permitted."²⁰ The 2013 amendments to the KRTA, prompted by the holdings in the O'Brien case, repealed both §§ 108 and 115, and damages are now included in the current § 161.²¹ Although actual damages and treble damages are included in the revised statute, full consideration damages are not.

The legislature also included a provision addressing the retroactivity of the KRTA amendments:

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 act, shall not be abated. All other non-remedial provisions of this section shall be applied prospectively.²²

B. Kansas Law

Generally, under Kansas law, statutes will not be given retroactive effect "unless it appears that such was the legislative intent."²³ "Even where the legislative intent is clear, courts must still consider whether retrospective application of legislation will affect vested or substantive rights."²⁴ Kansas also generally applies the following rule:

[W]hen 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.²⁵

Thus, in general, changes in law that only affect remedies or laws of procedure operate retroactively.²⁶ Again, however, "a statute which affects a remedy may be applied retrospectively only if it ‘does not prejudicially affect the substantive rights of the parties.’ "²⁷

C. Case Law Addressing KRTA Amendments

Two Kansas Court of Appeals' decisions have addressed the KRTA amendments although they do not specifically address the retroactivity of § 50-115. One is published, and one is not. In the unpublished opinion, O'Brien II , the Kansas Court of Appeals noted the changes in the KRTA, and that those changes were enacted in direct response to the Kansas Supreme Court's earlier opinion in the case.²⁸ The court noted the repeal of full consideration damages as well as other changes to the KRTA.²⁹ The Kansas Court of Appeals noted that most of the precedential value from its opinion and the Kansas Supreme Court's earlier O'Brien I decision was limited to cases already pending...