November 18, 2019

A Missouri federal judge gave propane giants Blue Rhino and AmeriGas an initial green light Monday to move forward with a $12.6 million bundle of retailer settlements, ending part of multidistrict litigation in which the companies were accused of fixing prices through an agreement to underfill tanks.

U.S. District Judge Gary A. Fenner granted preliminary approval to the class action settlement covering entities that bought filled propane tanks from AmeriGas or Blue Rhino’s Ferrellgas, or paid the companies directly to exchange a tank, between July 2008 and January 2015. The settlement covers the initial allegations, plus a period of alleged further violations after the companies settled an initial round of cases. It has all the hallmarks justifying preliminary approval, according to the judge.

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The current MDL, comprised of direct purchasers who inked the instant deal and indirect purchasers who had a big chunk of their claims siphoned off in August, represents a second wave of suits in the multidistrict litigation years after the first were settled. These new suits accuse AmeriGas, Ferrellgas and others of continuing their anti-competitive behavior in violation of the settlement.

The first cases against the propane companies were filed in 2009, consolidated into an MDL and then settled between 2010 and 2012. They accused the companies of agreeing to reduce the fill level of their propane tanks from 17 to 15 pounds while keeping prices the same.

The second wave of lawsuits maintained that the propane companies continued underfilling tanks after they agreed to stop in 2010.

On Monday, Judge Fenner counted the retailers settling the direct purchaser side of the case at “several thousand,” more than enough members to make the class sufficiently numerous. Those class members also have the same common issues of allegedly inflated prices to justify certification and settlement, the judge said, along with the required “typicality” of higher prices, with the same issues predominating.

Judge Fenner also said the named class members will adequately represent other retailers and appointed Berger Montague, Cohen Milstein Sellers & Toll PLLC, Susman Godfrey LLP and Shaffer Lombardo Shurin PC as settlement class counsel. The judge was further satisfied with how class members would be notified and how the settlement fund would be run.

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The direct buyers are represented by Richard F. Lombardo, H. Laddie Montague Jr., Eric L. Cramer and Martin I. Twersky of Berger Montague; Kit A. Pierson, Emmy L. Levens, Alison Deich and Daniel H. Silverman of Cohen Milstein Sellers & Toll PLLC; and Steve Susman, Vineet Bhatia, Stephen Morrissey and John E. Schiltz of Susman Godfrey LLP.

The complete article can be accessed here.