Situated v. Partners, No. 09-20607.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: EDITH H. JONES, Chief Judge:
• Citation: 620 F.3d 465
• Parties: RIO GRANDE ROYALTY COMPANY, INC., on behalf of itself and all others similarly situated, Plaintiff-Appellant, v. ENERGY TRANSFER PARTNERS, L.P.; Energy Transfer Co.; ETC Marketing, Ltd.; Houston Pipeline Company, Defendants-Appellees.
• Decision Date: 15 September 2010
• Docket Number: No. 09-20607.

620 F.3d 465

RIO GRANDE ROYALTY COMPANY, INC., on behalf of itself and all others similarly situated, Plaintiff-Appellant,
v.
ENERGY TRANSFER PARTNERS, L.P.; Energy Transfer Co.; ETC Marketing, Ltd.; Houston Pipeline Company, Defendants-Appellees.

No. 09-20607.

United States Court of Appeals,Fifth Circuit.

Sept. 15, 2010.

620 F.3d 466

Bernard Persky (argued), Labaton Sucharow, L.L.P., New York City, for Plaintiff-Appellant.

Charles W. Schwartz (argued), Skadden, Arps, Slate, Meagher & Flom, L.L.P., Houston, TX, John Nowell Estes, III, William Scott Scherman, Steven C. Sunshine, Skadden, Arps, Slate, Meagher & Flom, L.L.P., Washington, DC, for Defendants-Appellees.

Appeal from the United States District Court for the Southern District of Texas.

Before JONES, Chief Judge, and HIGGINBOTHAM and ELROD, Circuit Judges.

EDITH H. JONES, Chief Judge:

Rio Grande Royalty Company, Inc., contends that defendants Energy Transfer Partners, L.P., Energy Transfer Company, ETC Marketing, Ltd., and Houston Pipeline Company committed common law fraud by truthfully reporting natural gas transactions that, because of the defendants' alleged monopolization of the Houston spot market, served to lower prices artificially on long-term contracts. As a result of the alleged misrepresentations, the defendants and other gas buyers were able to purchase natural gas at below-market prices, to the detriment of Rio

620 F.3d 467

Grande and other sellers. Rio Grande also argues that the defendants' failure to disclose this manipulation to sellers constituted a material omission and thus fraud. The district court dismissed the claims. Because the defendants' alleged conduct does not amount to common law fraud, we affirm.

I. BACKGROUND

The district court found that the plaintiff's complaint failed to state a claim under Fed.R.Civ.P. 12(b)(6), and we therefore assume the truth of all facts properly pled within it.

The parties are participants in the natural gas market, buying and selling contracts for the delivery of gas. These contracts are typically of two kinds: those in which the price is fixed in the contract and those in which the price is determined by reference to a published price index. The price index at issue here, for deliveries to the Houston Ship Channel (HSC), is published monthly by trade publications such as Platts Inside FERC's Gas Market Report and is based on fixed-price transactions made during a “bidweek,” usually the last five business days of the preceding month. Buyers and sellers voluntarily report volume and price data to Platts, which then calculates the index price.

The plaintiffs allege that the defendants-energy traders and operators of interstate pipelines and other infrastructure-monopolized trading in the market through HSC, a principal U.S. natural gas gateway, from December 2003 through December 2005. During this period, the defendants exploited their market position by making bidweek sales at artificially low prices-in other words, dumping. This, in turn, suppressed the HSC index, to the benefit of the defendants, which were net buyers of natural gas, and to the detriment of the plaintiff and other sellers bound by index-linked contracts. ¹

Rio Grande filed suit in 2008, seeking to certify a class of all natural gas sellers, other than the defendants, who sold gas at prices determined by reference to the manipulated HSC index. ² Its original complaint asserted claims under the Sherman Act for predatory pricing, unlawful monopolization, and restraint of trade. The district court dismissed these antitrust claims under Rule 12(b)(6). It found that the plaintiff had failed to allege any predatory behavior, merely low prices; failed to allege facts showing the extent of the defendants' market power; and failed to do more than simply assert collusive behavior. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (2007) ( “[A] plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions.”) (internal quotation marks removed). At the same time, the court granted the plaintiff thirty days to file an amended complaint.

The plaintiff's amended complaint sought to remedy its Sherman Act monopolization claim and asserted an additional claim of common law fraud. The defendants, it alleged, “knowingly, intentionally and recklessly misrepresented and omitted material facts by, inter alia, reporting...