Update June 2011: The court denied the plaintiff’s motion to reconsider its decision.
Southern District of NY Judge Shira Scheindlin ruled that Plaintiff, Charles Simon, lacked standing to sue electric power supplier KeySpan and Morgan Stanley for allegedly manipulating the price of power sold to Simon’s utility, Con Edison. KeySpan paid $12 million to settle a Department of Justice antitrust claim.
Simon argued that although he was an indirect purchaser, he could nonetheless sue for damages because 100% of the overcharge was necessarily passed-on by Con-Ed. The court held that because Simon did not purchase through a fixed quantity cost-plus contract, the cost-plus exception to the Illinois Brick indirect purchaser rule did not apply. Moreover, Simon was precluded from obtaining relief in court by the filed rate doctrine, because Keyspan’s rates were filed with the Federal Energy Regulatory Commission.
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