Judge Edmund A. Sargus, Jr. recently issued an order certifying a class action in Anthony Williams, et al. v. Duke Energy Corporation, et al., Case No. 1:08-cv-46 (S.D. Ohio). The lawsuit alleges that Duke Energy and its predecessor CG&E/Cinergy secretly paid approximately $73 million in kickbacks to over 24 large, Southwest Ohio companies in exchange for the withdrawal of these customers' objection to a rate-stabilization plan that Duke was attempting to have approved by the Public Utilities Commission of Ohio. The plaintiffs allege that the rebates Duke provided to the favored customers - which include 12 hospitals, two healthcare facilities, two oil companies, two automobile manufacturers, an airplane manufacturer, a steel company, a manufacturer of cleaning supplies, a supplier of specialty nutrition products, and a supermarket chain - violate the Robinson-Patman Act, Ohio's Pattern of Corrupt Activity Act, RICO, and common law claims of fraud and civil conspiracy.
Over Duke's objections, Judge Sargus certified a class of all business and residential electricity users serviced by Duke Energy or its predecessor in Southwest Ohio between January 1, 2005 and December 31, 2008 who did not receive the secret kickbacks. In so ruling, Judge Sargus rejected Duke's arguments that the class did not establish commonality under Rule 23(a)(2) and the named plaintiffs did not meet the standard for fair and adequate representation under Rule 23(a)(4).