In re Western States Antitrust Litig.

State antitrust claims arising outside of the Federal Energy Regulatory Commission’s jurisdiction are not preempted by the Natural Gas Act; denying leave to amend is proper when the party seeking the amendment has known the facts and theory since the case began; and denying dismissal of defendants is proper if the defendants fail to make a “compelling case” for why the exercise of personal jurisdiction would be unreasonable.

Retail buyers of natural gas (“Plaintiffs”) appeal the decisions of the district court entering summary judgment for the various natural gas traders (“Defendants”), denying motions to amend the complaints, dismissing AEP Defendants and other claims. Plaintiffs allege that Defendants “violated antitrust laws by manipulating the natural gas market” that lead to the energy crisis of 2000-2002. Plaintiffs brought multiple state and federal claims that were eventually consolidated into this litigation. The district court entered summary judgment for the Defendants reasoning that the Natural Gas Act (“NGA”) preempted the state law antitrust claims. In E. & J. Gallo Winery v. Encana (“Gallo”) the Court previously held that the FERC does not have jurisdiction over “first sales at the wellhead or via imports from Canada or Mexico.” Consistent with that opinion the Ninth Circuit held that “the NGA does not preempt the Plaintiffs’ state antitrust claims” because the transaction arose outside of the Federal Energy Regulatory Commission’s (“FERC”) jurisdiction and federal preemptions doctrines do not preclude such claims. The FERC’s own Code of Conduct discussion on jurisdictional limitations supports such a conclusion. The panel further held that the district court did not abuse its discretion in denying the leave to amend the complaints because the Plaintiffs were aware of the facts supporting the amendments since the case began. Finally, the panel reversed the district court’s decision to dismiss the AEP Defendants because they failed to make a “compelling case” that the “exercise of personal jurisdiction in Wisconsin would be unreasonable.” REVERSED in part, AFFIRMED in part, and REMANDED.