After class status denied, five Columbia Gas suits re-opened

By Steve Korris | Jan 8, 2009


HUNTINGTON – From the wreckage of an immense class action against Columbia Gas Transmission, Charleston attorney Rudy DiTrapano has picked up just five little pieces.

DiTrapano sought to represent 436 natural gas marketers in conspiracy and antitrust claims, but U.S. District Judge Robert Chambers denied class certification last year.

By cutting off class action, Chambers reopened five suits that DiTrapano clients filed as individuals in 2004.

Chambers planned a status conference on the cases Jan. 12.

To make the matter worse for DiTrapano, he apparently expects trouble collecting a fee from a client that settled with Columbia Gas Transmission.

DiTrapano filed a lien notice with Chambers on Dec. 18, claiming a share of proceeds from a settlement between Stand Energy and Columbia Gas Transmission.

Stand Energy would have acted as lead plaintiff if Chambers had certified a class.

DiTrapano alleges a scheme among Columbia Gas Transmission, three subsidiaries and four "select" gas shippers to favor each other at the expense of other companies.

Columbia Gas Transmission stores and transports natural gas by pipelines in Kentucky, Tennessee, West Virginia, Virginia, Ohio, North Carolina, Pennsylvania, Maryland, Delaware, New Jersey and New York.

Expert Michael Harris testified for DiTrapano that he could calculate damages on a class wide basis and divide the damages on a pro rata basis.

The plan did not impress Chambers, who rejected it Aug. 17.

"Plaintiffs may not rely on the collective effect of all the alleged conspiracies to prove the elements of each single conspiracy," he wrote. "Plaintiffs fail to demonstrate how any particular conspiracy resulted in injury to all class members."

He wrote that Harris provided no analysis specific to any shipper defendant.

"Plaintiffs propose a class wide trial to fix aggregate damages, which would then be divided among class members in subsequent proceedings," Chambers wrote. "However, the calculation of damages in this antitrust action is not so simple.

"With the fluctuations in the market for gas over time, place, and other factors, the proof necessary to establish a loss of profits is not a mechanical or simple mathematical calculation."

Chambers wrote that even if damages could be calculated, dividing them in a subsequent proceeding would be virtually impossible.

He also found class action inappropriate due to conflicts of interest in the class.

To maximize its award, he wrote, each plaintiff has an incentive to minimize the losses of others.

"Some plaintiffs are no longer in business, some plaintiffs and defendants have been removed from this suit without explanation, and some select shippers are not party to the suit at all," Chambers wrote.

Finally, he found class action inappropriate because plaintiffs didn't convince him that natural gas marketers couldn't maintain claims as individuals.

Now the five remaining plaintiffs must do exactly that.

They are Energy Marketing Services, AGF Inc., Advantage Energy Marketing, Nicole Gas Marketing and 1564 East Lancaster Avenue Business Trust.

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