344 F. Supp. 3d 433
D.D.C.2018Background
- Plaintiffs (New England retail electricity consumers, putative class) sued Eversource and Avangrid asserting that defendants abused control over natural-gas transmission (Algonquin pipeline and LDC no‑notice contracts) to restrict gas supply, inflate spot gas and wholesale electricity prices, and cause ~ $3.6 billion in overcharges to retail customers.
- The complaint alleges defendants used LDC no‑notice transmission reservations and last‑minute cancellations (and declined to use FERC capacity‑release mechanisms) to withhold capacity from gas-fired generators, raising market clearing prices in ISO‑NE auctions.
- Plaintiffs sought damages and injunctive relief under Section 2 of the Sherman Act, Clayton Act remedies, and multiple state antitrust/consumer protection statutes on behalf of statewide and regionwide classes.
- Defendants moved to dismiss; the court considered Rule 12(b)(6) standards and accepted plaintiffs’ factual allegations as pleaded.
- The court concluded the filed‑rate doctrine bars plaintiffs’ federal and state claims because relief would require invalidating or altering FERC‑regulated tariffs and market prices; alternatively, plaintiffs lack antitrust standing and failed to plead monopoly power.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the filed‑rate doctrine bars plaintiffs' damages and injunctive claims | Plaintiffs say they challenge defendants' business choices (abuse of no‑notice contracts) outside FERC's purview and do not seek to alter filed tariffs or FERC‑approved wholesale rates | Defendants say any relief (damages or injunction) necessarily requires second‑guessing FERC‑regulated tariffs, wholesale auction prices, or tariff terms (including no‑notice provisions) | Filed‑rate doctrine applies: plaintiffs' requested relief would require courts to determine reasonableness of FERC‑regulated rates/terms; claims barred |
| Whether an exception to the filed‑rate doctrine applies (conduct not required by regulation) | Plaintiffs invoke cases allowing antitrust suits against business choices and assert FERC did not require the alleged conduct | Defendants argue FERC authorized the no‑notice contracts and related tariff terms; cited precedents reject plaintiffs’ narrow exception arguments | No applicable exception: FERC authorized the tariff terms at issue; cases relied on by plaintiffs are distinguishable |
| Antitrust standing (antitrust injury, directness, apportionment) | Plaintiffs argue downstream retail consumers were harmed and no other party will sue; harm is tied to defendants’ scheme to profit generators/other assets | Defendants contend plaintiffs are indirect, downstream purchasers three markets removed (transmission → spot gas → wholesale power → retail) and damages would be speculative/duplicative | Plaintiffs lack antitrust standing: injury is indirect/attenuated, causation speculative, apportionment/duplicative risks weigh against standing |
| Whether plaintiffs plausibly alleged monopoly power under §2 | Plaintiffs point to defendants’ combined control of pipeline interests, many LDC contracts, and ability to influence gas supply/wholesale prices | Defendants emphasize plaintiffs failed to plead a relevant market share or that either defendant individually possessed monopoly power (no shared‑monopoly theory) | Plaintiffs failed to plead monopoly/attempted monopolization: no plausible allegation each defendant individually had monopoly power |
Key Cases Cited
- Ark. La. Gas Co. v. Hall, 453 U.S. 571 (1981) (filed‑rate doctrine protects agency rate‑setting from judicial substitution)
- Town of Norwood v. F.E.R.C., 202 F.3d 408 (1st Cir. 2000) (filed‑rate doctrine applies to market‑based wholesale rates and tariff terms)
- Pub. Util. Dist. No. 1 of Snohomish County v. Dynegy Power Mktg., Inc., 384 F.3d 756 (9th Cir. 2004) (filed‑rate doctrine bars state antitrust claims that require assessing FERC‑regulated wholesale rates)
- Gallo II (E. & J. Gallo Winery v. EnCana Corp.), 503 F.3d 1027 (9th Cir. 2007) (filed‑rate doctrine precludes courts from reassessing FERC‑authorized market‑based natural gas rates)
- Wah Chang v. Duke Energy Trading & Mktg., LLC, 507 F.3d 1222 (9th Cir. 2007) (filed‑rate doctrine bars private damages suits that would require courts to set alternative rates)
- Otter Tail Power Co. v. United States, 410 U.S. 366 (1973) (antitrust injunctions may lie where statutory/regulatory scheme does not displace antitrust law; distinguished here)
- Square D Co. v. Niagara Frontier Tariff Bureau, Inc., 476 U.S. 409 (1986) (filed‑rate doctrine does not categorically bar injunctive antitrust suits, but injunctions that would alter tariff terms are prohibited)
- Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519 (1983) (prudential limits on antitrust standing; remote or indirect plaintiffs may be denied standing)
- Ill. Brick Co. v. State of Illinois, 431 U.S. 720 (1977) (concerns about pass‑on, apportionment, and duplicative recovery constrain damages suits by indirect purchasers)