Enterprise Energy Corp. v. Columbia Gas Transmission Corp.

137 F.R.D. 240, 1991 U.S. Dist. LEXIS 8193, 1991 WL 105504
CourtDistrict Court, S.D. Ohio
DecidedJune 18, 1991
DocketNo. C2-85-1209
StatusPublished
Cited by53 cases

This text of 137 F.R.D. 240 (Enterprise Energy Corp. v. Columbia Gas Transmission Corp.) is published on Counsel Stack Legal Research, covering District Court, S.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Enterprise Energy Corp. v. Columbia Gas Transmission Corp., 137 F.R.D. 240, 1991 U.S. Dist. LEXIS 8193, 1991 WL 105504 (S.D. Ohio 1991).

Opinion

OPINION AND ORDER

FINDINGS OF FACT AND CONCLUSIONS OF LAW

GEORGE C. SMITH, District Judge.

This matter is before the Court pursuant to the Joint Motion for Final Approval of Class Action Settlement under Federal Rule of Civil Procedure 23(e).1 Furthermore, before the Court there is a motion by plaintiffs for an award of attorney’s fees and expenses to class counsel and a motion by plaintiffs for an order to granting class representative incentive awards. The Court will address each of these matters seriatim.

FACTS

On July 26, 1985, a class action lawsuit was filed oh behalf of gas producers (“Class Members”) that had contracts with the defendant Columbia Gas Transmission Corporation (“Columbia Gas”). The contracts between the parties essentially provided the price to be paid for each unit of natural gas (MMBtu) as the maximum lawful price during the month of delivery under the Natural Gas Policy Act of 1978 (“NGPA”). Among the various provisions in the contract allowing for adjustment in price is a the “Cost Recovery Clause” (“CRC”). The clause provides as follows:

Cost Recovery. Notwithstanding any other provisions of this Agreement, if any order, opinion, enactment or regulation of the Federal Energy Regulatory Commission, or any other governmental authority (Federal or State), or of any court, may have the effect, either directly or as a precedent, of preventing Buyer’s full recovery of any portion of the Purchase Price paid or to be paid Seller, then Buyer with the next monthly billing cycle after the date of such order, opinion, enactment or regulation, or at such later date as it may elect, may in Buyer’s judgment enable Buyer to recover its full costs. In such case, the price provisions applicable to Seller’s deliveries of gas to Buyer shall be deemed modified as appropriate to assure Buyer its full-cost recovery. Seller hereunder shall not, however, be liable to Buyer for any overpayment hereunder prior to the date of such order, opinion, enactment or regulation.

[243]*243Pursuant to the above-cited clause, on July 11, 1985, Columbia Gas sent a letter to all Class Members announcing that it was invoking the CRC and that it would be adjusting the purchase price of the natural gas downward. The letter explained that Columbia Gas believed that two opinions of the Federal Energy Regulatory Commission (“FERC”), specifically, nos. 204 and 204-A, would have the effect, either directly or as a precedent, of preventing Columbia Gas’ full recovery of a portion of the gas purchase specified in the contracts.

Plaintiffs claimed that these FERC opinions do not have the effect of preventing Columbia Gas’ full recovery of the gas purchase price, and as such, the CRC cannot be invoked. Instead, the Class Members interpreted the FERC opinions to permit Columbia Gas to pass through the increased costs to the consumers.

By an Order entered by this Court on February 21, 1986, subsequently amended on March 1, 1991, a class was certified by this Court consisting of “[a]ll owners, operators and producers of natural gas producing wells in the Appalachian region (New York, Pennsylvania, West Virginia, Kentucky, Maryland, Virginia and Ohio) who are parties to gas purchase contracts with Columbia Gas Transmission Corporation entitling them to receive the maximum lawful price or a deregulated price under the NGPA ... and against whom Columbia has invoked a price reduction for amounts due under the contracts”. The plaintiff class involved approximately 852 contracts and 2163 Class Members.

The parties, over a period of six years, engaged in substantial discovery, including the use of interrogatories, requests for documents, and depositions. This discovery was then utilized by the respective parties in a variety of motions, including disposi-tive motions.

Pursuant to a motion for summary judgment filed by the Defendant, the Court, in an Opinion an Order dated September 15, 1989, held that the there existed no genuine issue of material fact as to whether Columbia Gas did in fact invoke the CRC in July of 1985, March of 1987 and September of 1987. This Court further held that there was a “prevailing opinion, order, enactment, or regulation out of FERC ... which Columbia [Gas] could rely upon so as to meet the language prerequisite found within the CRC provision of the contract.” In short, the Court found that Columbia Gas could rely upon the 204 and 204-A cases and other decisions, settlements, and FERC regulatory orders existing at the time in the industry to meet the contractual language prerequisite requirement in order to invoke the CRC.

This Court further found, however, that there existed “a genuine issue of material fact as to whether Columbia Gas had objectively acted in good faith in their decision to invoke the 1985 and 1987 CRCs”; whether Columbia Gas had “subjectively and with honesty in fact decided to invoke the CRCs”; whether Columbia Gas had ostensibly utilized the 204 cases and other decisions; and whether the prices set following the invocations were just and reasonable. In making the above findings, the Court had granted in part and denied in part the defendants’ motion for summary judgment.

On June 25, 1990, the Plaintiff Class Members filed a motion for partial summary judgment. In an Opinion and Order dated August 30, 1990, the Court denied the dispositive motion. It became apparent at that time that the resolution of the case would only come through a negotiated settlement or a trial.

The issues of liability and damages were bifurcated for trial. Additionally, only a portion of the liability issue has been subject to discovery and was set for trial in September of 1990. Consequently, substantial litigation and discovery could remain prior to any final determination of the parties’ rights.

The parties engaged in a non-binding mediation proceeding during the first half of 1990. Following extensive briefing and preparation, the mediation lasted for almost one week in Columbus during June of 1990. In spite of the participants’ efforts, the parties were unable to negotiate a settlement of this lawsuit during the mediation process.

[244]*244After the mediation, both sides again continued to prepare for an early September 1990 trial. This preparation led to settlement negotiations beginning in September of 1990. These settlement negotiations lasted several months and at the request of both parties included the supervision of the Court.

After almost six months of concerted negotiations by Class Counsel, Class Representatives and Columbia, a Stipulation of Proposed Class Action Settlement (the “Settlement”) was reached in late February of 1991. This Settlement was then filed with the Court. This Court preliminarily approved the Settlement on March 15, 1991, and scheduled a fairness hearing for May 23, 1991.

Contemporaneous with its preliminary approval of the proposed Settlement, this Court approved the form of Notice proposed by the parties, and ordered that the Notice be sent by Class Counsel to each Class Member, at the Class Member’s last known business address, on or before March 22, 1991.

On March 22, 1991, pursuant to this Court’s Order, Class Counsel mailed the Notice concerning the proposed Settlement to the approximately 2,163 Class Members having interests in the 852 Class Member contracts involved in this case.

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137 F.R.D. 240, 1991 U.S. Dist. LEXIS 8193, 1991 WL 105504, Counsel Stack Legal Research, https://law.counselstack.com/opinion/enterprise-energy-corp-v-columbia-gas-transmission-corp-ohsd-1991.