Kansas

Warning: The following opinion is provided for purposes of discussion only. We have not Shepardized™ this opinion, and do not know the subsequent disposition of this case nor whether the effect of the opinion has been overruled or superceded by other law.

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

Case Nos. 01-2410-JAR, 03-2664-JAR

July 9, 2004

B-S STEEL OF KANSAS, INC., PLAINTIFF,
v.
TEXAS INDUSTRIES, INC., ET AL., DEFENDANTS.
CHAPARRAL STEEL MIDLOTHIAN, L.P., PLAINTIFF,
v.
B-S STEEL OF KANSAS, INC., DEFENDANT

MEMORANDUM AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT AND DENYING DEFENDANTS' MOTION TO STAY

This matter comes before the Court on defendants' Motions for Summary Judgment on Plaintiff's claims (Docs. 229 and 237). Defendants Texas Industries, Inc., Chaparral Steel Texas, Inc., and Chaparral Steel Company (hereinafter defendants) urge that Plaintiff B-S Steel of Kansas, Inc.'s (B-S Steel) claims are barred by the doctrines of res judicata (claim preclusion) and collateral estoppel (issue preclusion). Additionally, defendants suggest that any damage from B-S Steel's purchases after April 3, 2001 is de minimis; that B-S Steel lacks standing to obtain injunctive relief; and that B-S Steel's damage expert's testimony is inadmissible. Also before the Court is defendants' Motion to Stay (Doc. 297). For the reasons stated below, the summary judgment motions are granted in part and denied in part, and the motion to stay is denied as moot.

I. Summary Judgment Standard

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law."*fn1 The requirement of a "genuine" issue of fact means that the evidence is such that a reasonable jury could return a verdict for the nonmoving party.*fn2 Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law."*fn3

The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. This burden may be met by showing that there is a lack of evidence to support the nonmoving party's case.*fn4 Once the moving party has properly supported its motion for summary judgment, the burden shifts to the nonmoving party to show that there is a genuine issue of material fact left for trial.*fn5 "A party opposing a properly supported motion for summary judgment may not rest on mere allegations or denials of [its] pleading, but must set forth specific facts showing that there is a genuine issue for trial."*fn6 Therefore, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment.*fn7 The Court must consider the record in the light most favorable to the nonmoving party.*fn8

The Court notes that summary judgment is not a "disfavored procedural shortcut"; rather, it is an important procedure "designed to secure the just, speedy and inexpensive determination of every action."*fn9

II. Facts

The following facts are either uncontroverted or related in the light most favorable to the nonmoving party.

On August 15, 2001, B-S Steel filed suit in Case No. 01-2410, naming as defendants Texas Industries, Inc. (TXI) and Chaparral Steel Company (CSC). B-S Steel filed an amended complaint on December 6, 2001, naming as additional defendants Chaparral Steel Texas, Inc. and Chaparral Steel Midlothian (Midlothian). The defendants are related entities. TXI owns 100% of the common stock of CSC. In turn, CSC owns 100% of the common stock of Chaparral Steel Texas. CSC also owns 100% of the common stock of Chaparral Steel Holdings, Inc. (CSHI). CSHI owns 100% of the beneficial interest in Chaparral Steel Trust (CST). CST owns a 99% limited partnership interest in Midlothian. In addition, Chaparral Steel Texas owns a 1% general partnership interest in Midlothian.

B-S Steel's amended complaint alleged that TXI, CSC, Chaparral Steel Texas and Midlothian committed various violations of state and federal law by entering into a "secret deal" to sell steel at a lower price to B-S Steel's competitors. Specifically, B-S Steel alleges defendants violated section 2(a) of the Clayton Act, as amended by the Robinson-Patman Act (R-P Act), 15 U.S.C. § 13(a). B-S Steel alleges those violations entitle it to treble its actual damages pursuant to § 4 of the Clayton Act,*fn10 permanent injunctive relief pursuant to §16 of the Clayton Act,*fn11 and an award of its costs and reasonable attorneys' fees. B-S Steel also alleges defendants committed common law fraud, misrepresentation, and tortious interference with B-S Steel's prospective business relations, entitling it to an award of its actual damages and punitive damages.

By its Order dated September 3, 2002,*fn12 this Court referred B-S Steel's claims against Midlothian, which were based on transactions occurring before April 3, 2001, to arbitration pursuant to the Conditions of Sale Contract between B-S Steel and Midlothian. This Court found in its Order that the Conditions of Sale Contract signed in February 1997 and effective after July 1, 1996 was "valid and enforceable."

B-S Steel voluntarily dismissed Midlothian on September 17, 2002. On that same day, B-S Steel informed Midlothian by letter that it was unwilling to proceed to arbitration. Subsequently, Midlothian filed a Demand for Arbitration with the American Arbitration Association seeking an order declaring that Midlothian was not liable to B-S Steel on its claims against Midlothian.

On November 12, 2002, B-S Steel filed counterclaims in the arbitration against Midlothian, which were based on the same transactions and representations that the original claims in B-S Steel's amended complaint were based upon. B-S Steel counterclaims included: (1) a counterclaim under the R-P Act, Title 15, U.S.C. § 13(a), alleging price discrimination by Midlothian in the sale of steel beams to B-S Steel's competitors and seeking treble damages, injunctive relief and attorneys fees; (2) a claim for fraud and misrepresentation based on the alleged denials of Midlothian's agents that B-S Steel's competitors were receiving more favorable pricing; (3) a claim for violation of the Texas Deceptive Trade Practices Act; and (4) a claim for tortious interference.

The arbitration was conducted from July 28, 2003 through August 7, 2003 by a three member panel of arbitrators; there were eight and half days of evidence presented by the testimony of witnesses and many exhibits. B-S Steel called thirteen witnesses live, designated deposition testimony of another seventeen witnesses and called three live witnesses in its rebuttal case after Midlothian rested. Additionally, B-S Steel cross-examined each witness called by Midlothian.

At the arbitration, both B-S Steel and Midlothian presented evidence concerning the Agreements with alleged "favored buyers," the basis of B-S Steel's claim for price discrimination in violation of the R-P Act. They both presented evidence regarding B-S Steel's claim, including testimony about whether representatives of Midlothian made statements denying the existence of special pricing with B-S Steel's competitors.

On November 21, 2003, the arbitrators issued a 39 page, single-spaced arbitration award. The arbitrators awarded "full relief to Chaparral Steel Midlothian, LP on its declaratory judgment action and grant[ed] no award to B-S Steel of Kansas, Inc. on its counterclaim for violation of the R-P Act, common law fraud, or violation of the Texas Deceptive Trade Practices Act."

Following the issuance of the arbitration award, Midlothian filed a motion to confirm the arbitration award in the District of Kansas and B-S Steel filed a motion to vacate the award in the Northern District of Texas. In the Texas court, Midlothian moved to transfer B-S Steel's motion to vacate to the District of Kansas, pursuant to 28 U.S.C. § 1404. On May 10, 2004, Judge Sam Lindsay ordered the Texas case transferred to the District of Kansas. In its Order dated June 15, 2004,*fn13 this Court denied B-S Steel's motion to vacate the arbitration award and granted Midlothian's motion to confirm the award.

III. Discussion

Defendants seek summary judgment on all of B-S Steel's claims on various grounds. Defendants suggest that: (1) all of B-S Steel's claims are barred by the doctrine of res judicata; (2) B-S Steel's R-P Act claim arising from post April 3, 2001 transactions is barred by collateral estoppel; (3) any damage from B-S Steel's purchases after April 3, 2001 is de minimis; (4) B-S Steel lacks standing to obtain injunctive relief; and (5) B-S Steel's damage expert's testimony is inadmissible.

A. Res Judicata

Defendants urge that summary judgment be granted on B-S Steel's claims on the basis of res judicata. In response, B-S Steel argues that the arbitration award is not a final judgment, several of its claims were not submitted to the arbitrators, and the equitable principles of res judicata do not compel summary judgment.

One of the main policy considerations underlying res judicata is the interest in bringing litigation to an end.*fn14 "By preventing repetitious litigation, application of res judicata avoids unnecessary expense and vexation for parties, conserves judicial resources, and encourages reliance on judicial action."*fn15 Under the doctrine of res judicata, a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in the prior action.*fn16 To apply res judicata, "three elements must exist: (1) a final judgment on the merits in an earlier action; (2) identity of parties or privies in the two suits; and (3) identity of the cause of action in both suits."*fn17 Defendants bear the burden to set forth facts sufficient to satisfy each element.*fn18

1. Final Judgment on the Merits

B-S Steel argues that the arbitration award is not a final judgment on the merits because the arbitrators lacked jurisdiction and, therefore, the award is void ab initio. This Court has repeatedly considered and rejected B-S Steel's argument,*fn19 and the Court's previous rulings are law of the case. The law of the case dictates that a court's previous rulings "should continue to govern the same issues in subsequent stages in the same case."*fn20 As such, the Court declines to revisit this issue.

The Court determines that the arbitration award is a final judgment on the merits. An arbitration award can be given preclusive effect,*fn21 and should be in this case because the arbitration was akin to a full-blown trial. The arbitration was conducted from July 28, 2003 through August 7, 2003 in front of a three member panel of arbitrators; there were eight and half days of evidence presented by the testimony of witnesses and many exhibits. B-S Steel called thirteen witnesses live, designated deposition testimony of another seventeen witnesses and called three live witnesses in its rebuttal case after defendant rested. Additionally, B-S Steel cross-examined each witness called by Midlothian at the arbitration.

At the arbitration, both B-S Steel and Midlothian presented evidence concerning the Agreements with alleged "favored buyers" providing for rebates, the basis of B-S Steel's claim for price discrimination in violation of the R-P Act. Evidence concerning B-S Steel's fraud claim was also presented by both B-S Steel and Midlothian, including testimony about whether representatives of Midlothian made statements denying the existence of special pricing with B-S Steel's competitors.

On November 21, 2003, the arbitrators issued a 39 page, single-spaced arbitration award. The arbitrators awarded "full relief to Chaparral Steel Midlothian, LP on its declaratory judgment action and grant[ed] no award to B-S Steel of Kansas, Inc. on its counterclaim for violation of the R-P Act, or common law fraud." The arbitrators found that B-S Steel had failed to meet its evidentiary burdens on both injury and quantification of damages on its R-P Act claim. Similarly, the arbitrators denied B-S Steel's fraud claim because B-S Steel had failed to prove damages by clear and convincing evidence. After reviewing the conclusions of law and fact set forth in the arbitration award, this Court confirmed the award. Certainly, the arbitration award is a final judgment on the merits.*fn22 Thus, the arbitrators finding against B-S Steel on its R-P Act and fraud claims is entitled to res judicata effect if defendants show that there is identity of the parties or their privies and identity in the causes of action.

2. Identity of Parties or Privies

B-S Steel also argues that privity is lacking, apparently because the defendants were not parties to the agreement mandating arbitration. But, privity does not require the plaintiff and defendant to be parties to an agreement. "Privity requires, at a minimum, a substantial identity between the issues in controversy and showing [that] the parties in the two actions are really and substantially in interest the same."*fn23 There is no definition of privity which can be automatically applied in all cases involving the doctrine of res judicata.*fn24 But, courts have found a parent company and its wholly owned subsidiary to be in privity for the purposes of res judicata.*fn25 Likewise, an adverse party's own allegations of a controlling "near alter ego relationship is sufficient to establish privity between two related corporations."*fn26

The Court determines that defendants are in privity with Midlothian. Defendant TXI owns 100% of the common stock of defendant CSC. In turn, CSC owns 100% of the common stock of defendant Chaparral Steel Texas. CSC also owns 100% of the common stock of Chaparral Steel Holdings, Inc. (CSHI). CSHI owns 100% of the beneficial interest in Chaparral Steel Trust (CST). CST owns a 99% limited partnership interest in Midlothian. In addition, Chaparral Steel Texas owns a 1% general partnership interest in Midlothian. Thus, the undisputed facts show that defendants are in a parent-subsidiary relationship with Midlothian and the inter-corporate relationships put defendants in privity with Midlothian for purposes of res judicata.

Defendants also stress that B-S Steel has repeatedly referred to defendants as closely related to Midlothian or in privity with Midlothian. B-S Steel responds that "many of these statements were made prior to discovery and are preempted by the Pretrial Order. However, B-S Steel's factual contentions in the Pretrial Order entered on December 22, 2003, following the conclusion of the arbitration, provide in pertinent part: "Defendants are WFB producers and sellers under the Robinson Patman Act. They produce and sell WFB in their own right, and they are in privity with Chaparral Steel Midlothian. Hence, B-S Steel's argument fails and the Court determines that by virtue of the intercorporate relationship between defendants and Midlothian, which has been continually stressed by B-S Steel, the entities are in privity.

3. Identity of the Causes of Action

Lastly, defendants must establish that there is an identity of the causes of action. The Tenth Circuit has adopted the transactional approach to determine what constitutes a cause of action for res judicata principles.*fn27 The transactional approach provides that a final judgment extinguishes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose.*fn28 Thus, under the transactional approach a cause of action includes all claims or legal theories of recovery that arise from the same transaction, event or occurrence.*fn29 All claims arising out of the same transaction must be presented in one suit or barred from subsequent litigation.*fn30

It cannot be disputed that B-S Steel tried the same claims in the arbitration as it brings in this case. In both cases, B-S Steel asserts violations of the R-P Act, based upon discounts given to favored buyers, as well as fraud and tortious interference claims. The only difference is B-S Steel's claim under the Deceptive Trade Practices Act, which was brought only in the arbitration. Additionally, the claims in the arbitration and those in this case are based upon the same transactions and events. The Court thus gives res judicata effect to B-S Steel's asserted violations of the R-P Act and its fraud claim, which the arbitrators denied.

While B-S Steel included a claim for tortious interference with a business expectancy in its counterclaims filed in the arbitration, it declined to seek damages for this claim at the conclusion of the arbitration. B-S Steel does not explain why it chose not to seek damages for its tortious interference claim; in fact, it neglected to even respond to defendants' argument. It is well-settled that a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in the prior action.*fn31 This principle applies equally to claims arbitrated.*fn32 B-S Steel's tortious interference claim certainly could have been raised in the arbitration; indeed, it was asserted as a counterclaim. Additionally, the tortious interference claim springs from the same transaction, event, or occurrence as the claims determined by the arbitrators; it was the price reductions with favored buyers that B-S Steel asserts constituted tortious interference. Consequently, res judicata prohibits B-S Steel from relitigating its tortious interference claim in this suit.

Not all of B-S Steel's claims, however, are barred by the doctrine of res judicata. Both B-S Steel and defendants agree that post-April 3, 2001 purchases by B-S Steel were not subject to the arbitration. Indeed, the arbitrators stated that "the scope of the claims before the panel are limited to transactions occurring between the fourth quarter of 1999 and April 3, 2001. The panel's decision does not address any claims based on transactions between [Midlothian] and [B-S Steel] occurring after that date." Summary judgment thus cannot be granted on these claims on the basis of res judicata. Nor can summary judgment be granted on B-S Steel's claim for injunctive relief under the R-P Act because the arbitrators specifically declined to decide this claim.*fn33 The arbitrators wrote that "to render a decision on whether [B-S Steel] has met its burden for purposes of injunctive relief would be advisory." Thus, there is no final judgment precluding this Court from deciding this claim.

The Court rejects B-S Steel's suggestion that the equitable principles of res judicata require the Court to refrain from giving preclusive effect to the arbitrated claims. The primary policy consideration underlying res judicata of bringing litigation to an end would not be served by giving B-S Steel "another bite at the apple." Moreover, the application of res judicata in this case avoids unnecessary expense and vexation for parties, conserves judicial resources, and encourages reliance on judicial action. Far from requiring the Court to refrain from applying res judicata, equity demands that the Court give preclusive effect to the arbitration award.

In sum, the Court grants summary judgment to defendants on B-S Steel's claims for: (1) deceptive trade practices in violation of the R-P Act; (2) fraud; and (3) tortious interference with a business expectancy relating to or arising from transactions prior to April 3, 2001 based on res judicata principles. The Court denies summary judgment for B-S Steel's R-P Act claim encompassing its post April 3, 2001 purchases, and its claim for injunctive relief.

B. Collateral Estoppel - Post April 3, 2001 Damages

Defendants argue that the doctrine of collateral estoppel bars B-S Steel from relitigating its R-P Act claim arising from post April 3, 2001 damages. Specifically, defendants claim that because B-S Steel presented and the arbitrators considered the post April 2001 purchases in reaching their award, the issue of post April 2001 damages may not be considered anew by this Court.

The doctrine of collateral estoppel "means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.*fn34 The elements of collateral estoppel are: (1) the issue previously decided is identical with the one presented in the action in question; (2) the prior action has been finally adjudicated on the merits; (3) the party against whom the doctrine is invoked was a party, or in privity with a party, to the prior adjudication; (4) and the party against whom the doctrine is raised had a full and fair opportunity to litigate the issues in the prior action.*fn35

B-S Steel does not contest that the damage issue decided by the arbitrators is the same issue before this Court. However, B-S Steel urges that the arbitrators' conclusions regarding damages is dicta and cannot be the basis for collateral estoppel. Dicta are "statements and comments in an opinion concerning some rule of law or legal proposition not necessarily involved nor essential to determination of the case in hand."*fn36 Collateral estoppel does not apply "if the issue was not necessary to the rendering of the prior judgment, and hence was incidental, collateral, or immaterial to that judgment."*fn37 Dicta must be distinguished, however, from a judgment based on alternative grounds. A judgment which is based on alternative grounds is an effective adjudication as to both and is collaterally conclusive as to both.*fn38

B-S Steel suggests that the arbitrators' statement, appearing after the panel determined that B-S Steel had failed to prove antitrust injury, that "[t]he panel realizes that given its decision on antitrust injury, it need go no further," is pure dicta. The arbitrators proceeded, however, to discuss B-S Steel's evidence of damages, namely the testimony of its damage expert, over a span of almost four pages before concluding that B-S Steel "failed to meet its evidentiary burden on both injury and quantification of damages." Thus, although the arbitrators recognized that they need go no further, they proceeded to go further and base their conclusion on an alternate ground. Further, both the issues of antitrust injury and damages were essential to B-S Steel's claim, such that nether were dicta or merely incidental or immaterial to the arbitration award. The fact that the arbitrators chose to base their conclusion on alternate grounds, does not make the discussion regarding damages dicta. Rather, the thoroughness of the arbitrators' award makes the case for collateral estoppel stronger.

B-S Steel asserts that because its claims arising from post April 2001 transactions were not required to be arbitrated, the arbitrators lacked jurisdiction over the claims such that the arbitration was not a final adjudication on the merits. The arbitrators, however, did not adjudicate B-S Steel's post April 2001 claims. Rather, the arbitrators simply determined that B-S Steel had failed to prove antitrust damages on its R-P Act claim for transactions occurring before or after April 3, 2001, and in reaching that conclusion, the arbitrators considered all the evidence before them.*fn39 It is settled that "once a court has decided an issue of fact or law necessary to its judgment, that decision may preclude relitigation of the issue in a suit on a different cause of action involving a party to the first case."*fn40 Thus, even though the arbitrators did not adjudicate B-S Steel's post April 2001 R-P Act claim, they did decide that B-S Steel had suffered no damage, either before or after April 2001, from price discrimination. The arbitrators clearly had jurisdiction to decide the claims before them; that an issue decided in the arbitration precludes B-S Steel from asserting the same issue in this case does not implicate the jurisdiction of the arbitrators to decide that issue within the claims before them. Because B-S Steel is collaterally estopped from relitigating the issue of damages relating to its post April 3, 2001 purchases, and because proof of antitrust damages is essential to a R-P Act claim,*fn41 the Court grants summary judgment on B-S Steel's R-P Act claim for post April 2001 transactions.

Lastly, B-S Steel argues that collateral estoppel is improper because the arbitration was an unfair proceeding and directs the Court to its motion to vacate. The Court has since denied B-S Steel's motion to vacate concluding that the arbitrators conducted a fundamentally fair hearing, free of manifest legal errors and bias.*fn42 Consequently, B-S Steel's reliance on the motion to vacate is moot.

C. De Minimis Damages

Defendants argue that summary judgment should be granted on B-S Steel's R-P Act claim for purchases after April 3, 2001 because any damage from those purchases is de minimis. The Court need not address this argument, in light of the preclusive finding by the arbitrators that B-S Steel suffered no damages from any purchases from Midlothian, including purchases before and after April 3, 2001.

D. Standing to Obtain Injunctive Relief

Defendants suggest that B-S Steel lacks standing to pursue its claim for injunctive relief under § 16 of the Clayton Act.*fn43 Section 16 of the Clayton Act provides in part that "[a]ny person, firm, corporation, or association shall be entitled to sue for and have injunctive relief . . . against threatened loss or damage by a violation of the antitrust laws."*fn44 To establish standing to bring a claim for an injunction, a plaintiff must show "threatened loss or damage of the type the antitrust laws were designed to prevent and that flows from that which makes defendants' acts unlawful."*fn45 Although § 16 only requires proof of "threatened loss or damage," the threatened injury must be of the type that would entitle a plaintiff to compensation if the injury actually occurred.*fn46 Stated differently, § 16 affords private plaintiffs injunctive relief only for those injuries cognizable under § 4 of the Clayton Act, which provides for the recovery of treble damages.*fn47

The Tenth Circuit has enumerated six factors relevant in determining whether a plaintiff has standing to pursue an antitrust claim:

(1) the causal connection between the antitrust violation and the plaintiff's injury; (2) the defendant's intent or motivation; (3) the nature of the plaintiff's injury--i.e., whether it is one intended to be redressed by the antitrust laws; (4) the directness or the indirectness of the connection between the plaintiff's injury and the market restraint resulting from the alleged antitrust violation; (5) the speculative nature of the damages sought; and (6) the risk of duplicative recoveries or complex damages apportionment.*fn48

But, when pursuing a claim for injunctive relief under § 16, the risk of duplicative recovery and the complexity of apportioning damages are not proper factors, because "one injunction is as effective as 100, and concomitantly, [] 100 injunctions are no more effective than one."*fn49

The Court need only address whether B-S Steel has shown antitrust injury, or threatened loss or damage of the type the antitrust laws were designed to prevent. B-S Steel suggests that it has shown an antitrust injury in the form of lost sales and lost margins. But the arbitrators considered these "injuries" in their award before concluding that B-S Steel "did not meet its burden of proof in demonstrating that it suffered antitrust injury, and so its claim for damages under [§ 4 of] the Clayton Act, based on a violation of the R-P Act, fails." Therefore, B-S Steel attempts to rest on the precise evidence considered and rejected by the arbitrators regarding its R-P Act claim. As this Court has previously discussed, the arbitrators' conclusion that B-S Steel failed to prove its R-P Act claim is res judicata. Hence, B-S Steel's reliance on injuries which are not cognizable under § 4 of the Clayton Act for permanent injunctive relief is improper and defendants' motion for summary judgment on this claim must be granted.*fn50

E. Damage Expert Testimony

Defendants urge that summary judgment is appropriate because the testimony of B-S Steel's damage expert is inadmissible such that B-S Steel is unable to prove that defendants' unlawful pricing and misrepresentations resulted in damages. Since this Court has already determined that the arbitrators' conclusion that B-S Steel had not proven its R-P Act or fraud claims is res judicata, and that summary judgment is appropriate on that ground, the Court need not address this argument.

F. Motion to Stay

Defendants have also filed a motion to stay further activities and continue the trial pending a ruling on their motions for summary judgment. This Memorandum makes defendants' motion moot, and the motion is denied accordingly.

IV. Conclusion

In sum, the Court grants summary judgment with respect to B-S Steel's claims for deceptive trade practices in violation of the R-P Act, fraud, and tortious interference with a business expectancy relating to or arising from transactions prior to April 3, 2001, based on res judicata principles. However, the Court denies summary judgment on the basis of res judicata for B-S Steel's fraud and tortious interference claims relating to transactions occurring after April 2001. Because the Court finds that B-S Steel is collaterally estopped from relitigating the issue of damages relating to its post April 3, 2001 purchases, the Court grants summary judgment on B-S Steel's R-P Act claim for this time period. The Court similarly grants summary judgment on B-S Steel's claim for permanent injunctive relief pursuant to § 16 of the Clayton Act because B-S Steel lacks standing.

The Court notes that summary judgment could be granted on B-S Steel's claim for fraud on the basis of damages because the arbitrators considered the fraudulent misrepresentations made after April 3, 2001 and determined that B-S Steel had failed to prove damages on any of the misrepresentations by clear and convincing evidence. It is unclear, however, whether all misrepresentations arising from and related to transactions occurring after April 3, 2001, were presented to the arbitrators. In light of this Order, the Court directs the parties to appear on July 14, 2004, at 9:00 a.m., for the purpose of conducting a status conference to inform the Court what claims, if any, survive.

IT IS THEREFORE ORDERED BY THE COURT that defendants' Motion for Summary Judgment (228) is GRANTED IN PART and DENIED IN PART.

IT IS FURTHER ORDERED BY THE COURT that defendants' Motion for Summary Judgment (Doc. 237) is GRANTED IN PART and DENIED IN PART.

IT IS FURTHER ORDERED BY THE COURT that defendants' Motion to Stay (Doc. 297) is DENIED as moot.

IT IS FURTHER ORDERED BY THE COURT that the parties appear for a status conference on July 14, 2004 at 9:00 a.m., to inform the Court what claims, if any, survive this Order.

IT IS SO ORDERED.

Dated this 9th day of July, 2004 at Topeka, Kansas.

JULIE A. ROBINSON United States District Judge

Opinion Footnotes

*fn1 Fed. R. Civ. P. 56(c).

*fn2 See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

*fn3 Id. at 251-52.

*fn4 See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).

*fn5 See Anderson, 477 U.S. at 256.

*fn6 Id.

*fn7 See id.

*fn8 See Bee v. Greaves, 744 F.2d 1387, 1396 (10th Cir. 1984), cert. denied, 469 U.S. 1214 (1985).

*fn9 Celotex, 477 U.S. at 327 (quoting Fed. R. Civ. P. 1).

*fn10 15 U.S.C. § 15(a).

*fn11 15 U.S.C. § 26.

*fn12 B-S Steel of Kansas, Inc v. Texas Indus., Inc., 229 F. Supp. 2d 1209 (D. Kan. 2002).

*fn13 Memorandum and Order Denying Motion to Vacate and Granting Motion to Confirm Arbitration Award, Case No. 01-2410, Doc. 304.

*fn14 Nwosun v. Gen. Mills Restaurants, Inc., 124 F.3d 1255, 1258 (10th Cir. 1997).

*fn15 Id.

*fn16 Wilkes v. Wyoming Dep't of Employment, 314 F.3d 501, 503-04 (10th Cir. 2003).

*fn17 Id. at 504.

*fn18 Nwosun, 124 F.3d at 1257.

*fn19 See Memorandum and Order Denying Motion to Dismiss, Case No. 03-2664, Doc. 15; Memorandum and Order Denying Motion to Vacate and Granting Motion to Confirm Arbitration Award, Case No. 01-2410, Doc. 304.

*fn20 McIlravy v. Kerr-McGee Coal Corp., 204 F.3d 1031, 1034 (10th Cir. 2000).

*fn21 See Coffey v. Dean Witter Reynolds Inc., 961 F.2d 922, 925 n.4 (10th Cir. 1992).

*fn22 See Coffey v. Dean Witter Reynolds Inc., 961 F.2d 922, 927-28 (10th Cir. 1992) (holding that a confirmed arbitration award is a final judgm ent on the merits).

*fn23 Lowell Staats Mining Co. v. Philadelphia Elect. Co., 878 F.2d 1271, 1275 (10th Cir. 1989).

*fn24 Id. at 1274-75.

*fn25 Buckley v. Airshield Corp., 977 F. Supp. 375, 378-79 (D. Md. 1997); In re Teltronics Serv., Inc., 762 F.2d 185, 191-92 (2d Cir. 1985); Aetna Cas. & Sur. Co. v. Kerr-McGee Chem. Corp., 875 F.2d 1252, 1259-60 (7th Cir. 1989).

*fn26 Robinson v. Volkswagenwerk AG, 56 F.3d 1268, 1275 (10th Cir. 1995).

*fn27 Petromanagement Corp. v. Acme-Thomas Joint Venture, 835 F.2d 1329, 1335 (10th Cir. 1988); King v. Union Oil of Cal., 117 F.3d 443, 445 (10th Cir. 1997).

*fn28 Petromanagement, 835 F.2d at 1335; Wilkes, 314 F.3d at 504.

*fn29 Wilkes, 314 F.3d at 504 (quoting Nwosun, 124 F.3d at 1257).

*fn30 Id.

*fn31 Wilkes, 314 F.3d at 503-04; Id. at 504 (under the transactional approach a cause of action includes all claims or legal theories of recovery that arise from the same transaction, event or occurrence).

*fn32 See Siegel v. Daiwa Sec. Co., Ltd., 842 F. Supp. 1537, 1542 (S.D.N.Y. 1994) (When claims either were or could have been presented and decided in the arbitration, the plaintiff is barred from pursuing them in the subsequent lawsuit).

*fn33 See United States v. Woodcrest, 706 F.2d 70, 79 (2d Cir. 1983) (when arbitrators decline to decide a claim or issue, the arbitration award has no preclusive effect on that claim or issue).

*fn34 Ashe v. Swenson, 397 U.S. 436, 443 (1970).

*fn35 Harrison v. Eddy Potash, Inc., 248 F.3d 1014, 1022 (10th Cir.), cert. denied, 534 U.S. 1019 (2001).

*fn36 Rohrbaugh v. Celotex Corp., 53 F.3d 1181, 1184 (10th Cir. 1995)

*fn37 P.A.T. Co. v. Ultrak, Inc., 948 F. Supp. 1518, 1521 (D. Kan. 1996); see also Keyes v. Sch. Dist. No. 1, Denver, Colo., 119 F.3d 1437, 1446 n.14 (10th Cir. 1997).

*fn38 Schellong v. U.S. Immigration & Naturalization Serv., 805 F.2d 655, 658 (7th Cir. 1986), cert. denied, 481 U.S. 1004 (1987); Irving Nat'l Bank v. Law, 10 F.2d 721, 724 (2d Cir. 1926); Johnson v. Eli Lilly & Co., 689 F. Supp. 170, 174 (W.D.N.Y. 1988); Wright & Miller, 18 Fed. Prac. & Proc. Juris. 2d § 4421 (West 2004).

*fn39 Importantly, it was B-S Steel's damage expert that presented evidence of damages based upon the purchases from Midlothian from October 1999 to December 30, 2001, and estimated damages as late as June 2003.

*fn40 Matosantos Commercial Corp. v. Applebee's Int'l, Inc., 245 F.3d 1203, 1208 (10th Cir. 2001).

*fn41 See, e.g., J. Truett Payne Co. v. Chrysler Motors Corp., 451 U.S. 557, 562 (1981) (to recover damages under the R-P Act, a plaintiff must "make a showing of actual injury attributable to something the antitrust laws were designed to prevent").

*fn42 Memorandum and Order Denying Motion to Vacate and Granting Motion to Confirm Arbitration Award, Case No. 01-2410, Doc. 304.

*fn43 15 U.S.C. § 26.

*fn44 Id.

*fn45 Cargill Inc. v. Monfort of Colo., 479 U.S. 104, 113, 107 S. Ct. 484 (1986).

*fn46 Id. at 112, 107 S. Ct. 484; see also Reibert v. Atlantic Richfield Co., 471 F.2d 727, 731 (10th Cir. 1973) (stating test as "(1) there is a causal connection between an antitrust violation and an injury sufficient to establish the violation as a substantial factor in the occurrence of damage; and (2) that the illegal act is linked to a plaintiff engaged in activities intended to be protected by the antitrust laws").

*fn47 Cargill, 479 U.S. at 112, 107 S. Ct. 484.

*fn48 Roman v. Cessna Aircraft Co., 55 F.3d 542, 543 (10th Cir. 1995).

*fn49 Cargill, 479 U.S. at 111 n.6, 107 S. Ct. 484.

*fn50 The Court similarly rejects B-S Steel's contention that as a private attorney general, it has standing to seek injunctive relief, for even a private attorney general must satisfy the standing requirements.

The legal opinions are a matter of public record (that's how we got them), and as such there can be no defamation for republishing them. Sometimes, however, legal opinions are reversed, vacated, or significantly modified, etc., and we do not discover this fact until somebody points it out to us. As we do not desire to publish inaccurate or outdated information, if a legal opinion has been reversed, vacated, or significantly modified, please advise us of this fact immediately, by fax to (877) 698-0678 or you may also send regular postal correspondence to Riser Adkisson LLP at 1827 Powers Ferry Road, Building One, Suite 200, Atlanta GA 30339.