AE - B-S Steel of Kansas v. Texas Industries (7/9/2004)

[Riser Adkisson LLP]

B-S Steel of Kansas, Inc. v. Texas Industries, Inc.,
No. 01-2410-JAR (D.Kan. 07/09/2004)

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.