John River Cartage, Inc. v. Louisiana Generating, LLC, NRG Energy, Inc. and Headwaters Resources, Inc.

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

NO. 2020 CA 0162

JOHN RIVER CARTAGE, INC.

VERSUS
l
LOUISIANA GENERATING, LLC; NRG ENERGY, INC.; AND HEADWATERS
RESOURCES, INC.

Judgment Rendered:
MAR 0 4 2020

Appealed from the
Eighteenth Judicial District Court
In and for the Parish of Pointe Coupee
State of Louisiana
Case No. 44406

Honorable Alvin Batiste, Jr., Judge Presiding

Jason L. Melancon Counsel for Plaintiff/Appellant,
Robert C. Rimes John River Cartage, Inc.
R. Lee Daquanno, Jr.
Baton Rouge, Louisiana
and

Frank Tomeny, III
Baton Rouge, Louisiana

Jeffrey N. Boudreaux Counsel for Defendants/ Appellants,
William L. Caughman, III Louisiana Generating, LLC and NRG
Jessica C. Engler Energy, Inc.
Baton Rouge, Louisiana

Richard F. Zimmerman, Jr. Counsel for Defendant/ Appellant,
Baton Rouge, Louisiana Headwaters Resources, Inc.
and

Andrew J. Tuck, Pro Hac Vice
Lee A. Deneen, Pro Hac Vice
Atlanta, Georgia
and

R. Bryan Barnes, Pro Hac Vice
Columbia, South Carolina
and

Keith L. Richardson
Baton Rouge, Louisiana

BEFORE: McDONALD, THERIOT, AND CHUTZ, JJ.

CHUTZ, J.

In this antitrust litigation, all parties appeal the trial court' s judgment, which

granted defendants' motions for partial summary judgment on the issue of

plaintiff' s per se antitrust claims under La. R. S. 51: 122 and dismissed those claims

with prejudice, denied defendants' motions for partial summary judgment as to

plaintiff' s antitrust monopoly claim under La. R.S. 51: 123 and plaintiff' s

conversion claims, and denied plaintiff' s motion for partial summary judgment on

the issues of the antitrust mode of analysis and joint venture. For the following

reasons, we affirm.

FACTUAL BACKGROUND

In Louisiana, there are three primary power companies operating coal -

burning power plants: Entergy Gulf States, Inc. ( Entergy), which operates the

Nelson Power Station in Westlake, Louisiana; Cleco Power, LLC ( Cleco), which

owns and operates the Rodemacher Power Station near Boyce, Louisiana, Dolet

Hills Power Station near Mansfield, Louisiana, and the Madison 3 Unit in Lena,

Louisiana; and Louisiana Generating, LLC ( LaGen), a subsidiary of NRG Energy,

Inc. ( NRG) and the majority owner and operator of the Big Cajun II fossil fuel

steam -generating plant in New Roads, Louisiana.

As a result of burning coal, these plants produce byproducts called coal

combustion products ( CCPs). These CCPs include fly ash, bottom ash, and

economizer ash. These CCPs are marketable for different uses depending on their

characteristics. C- 618 fly ash, a powdered fly ash that has never been hydrated,

can be used in the concrete industry as a replacement for cement. When fly ash is

exposed to water ( hydrated), it hardens, and the resulting hydrated fly ash can be

used as an aggregate in applications such as soil stabilization and the formation of

roadbeds.

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The Nelson, Rodemacher, and Dolet Hills Power Stations and Big Cajun II

produce C- 618 fly ash. The Madison 3 Unit, which is a circulating fluidized bed

CFB) plant, produces a different type of ash other than that used in the concrete

industry.

The normal coal -burning process used to generate electricity requires that

CCPs be removed as they accumulate. Thus, coal -burning plants will contract with

third parties for the removal and marketing, or, if not sold, the storage, of the CCPs

they produce. As such, Entergy, Cleco, and LaGen have entered into marketing

agreements for the removal, marketing, sale, and storage if necessary of CCPs on

their plant sites.

With regard to Big Cajun II, Big River Industries, Inc. ( Big River) held an

exclusive marketing agreement for the removal, marketing, sale, and, if not sold,

storage of CCPs produced at Big Cajun II for many years when Big Cajun II was

owned and operated by Cajun Electric Power Cooperative, Inc. ( Cajun Electric).

Similarly, after LaGen became the owner and operator of Big Cajun II in 2000,

LaGen entered into an Exclusive Marketing Agreement with Big River.

The agreement between LaGen and Big River was amended several times

over the years. The last contract executed between LaGen and Big River, a January

299 2009 Exclusive Marketing Agreement, provided that Big River was granted the

total responsibility for identification of uses, promotion, sales and delivery of Fly

Ash, Bottom Ash, and other CCPs" produced at Big Cajun II (the LaGen/ Big River

Agreement). Moreover, Big River was also responsible for transporting all non -

marketed CCPs from the area where they were temporarily placed by LaGen to

LaGen' s onsite ash storage pond and to manage those stockpiled CCPs. Big River

was compensated based on a contractually established percentage of gross sales

less transportation costs for the various forms of CCPs, with Big River

guaranteeing the sale of a certain quantity of CCPs each year. Pursuant to the

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LaGen/Big River Agreement, Big River was required to make a guaranteed per -ton

payment for any shortfall in the guaranteed sales quantities of CCPs.

Meanwhile, at the time when Big Cajun II was still owned and operated by

Cajun Electric, Big River began to experience a problem with an overabundance of

hydrated ash on the Big Cajun II premises. Thus, on August 1, 1998, Big River

entered into an agreement, the term of which was extended over the years, with

plaintiff, John River Cartage, Inc. ( JRC) to address the excess ash not sold to the

outside market (the JRC/ Big River Agreement).

Pursuant to the JRC/ Big River Agreement, JRC agreed to purchase and to

remove a specified minimum tonnage of hydrated fly ash and bottom ash at a price

set forth therein. JRC was responsible for all costs associated with the recovery,

loading, processing, and transportation of the hydrated fly ash and bottom ash from

the ash disposal ponds onsite. JRC also agreed to purchase excess powdered fly

ash at a higher set price.

The JRC/ Big River Agreement further acknowledged that Big River held the

exclusive marketing agreement for the marketing and sale of all fly ash and bottom

ash produced from the Big Cajun II operations and that the JRC/ Big River

Agreement was made " expressly subject to the terms and conditions" of the

LaGen/ Big River Agreement. Further, JRC acknowledged that the LaGen/Big

River Agreement could be amended " without prior notice or the consent of JRC.

As a result of the JRC/ Big River Agreement, JRC set up equipment on the

Big Cajun II plant site and began the removal of the hydrated fly ash and bottom

ash, which it processed into its product called " Grey Stone." Grey Stone is an

aggregate material, manufactured with fly ash, black bottom ash, brown bottom

ash, and water, which JRC marketed and sold for use in roadbeds and erosion

control projects. As JRC produced its Grey Stone product, it stockpiled the

product on the Big Cajun II site until such time that the material was sold and

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transported off the premises. Pursuant to the JRC/Big River Agreement, JRC

made payment of the contractual sum for the CCPs utilized when the product left

the Big Cajun II premises. JRC also on occasion sold excess powdered fly ash

within the state of Louisiana, but could do so only with Big River' s express

permission.

On January 20, 2011, LaGen entered into an Exclusive Marketing

Agreement with Headwaters Resources, Inc. ( HRI) for the marketing, sale, and

delivery of CCPs produced at Big Cajun II (the LaGen/HR1 Agreement). LaGen

and Big River then agreed that the LaGen/Big River Agreement terminated

effective January 21, 2011, and LaGen gave Big River thirty days from that date to

remove its property and equipment from the site.

Big River then notified JRC that Big River had lost its contract with LaGen

and, thus, JRC needed to remove all of its equipment from the Big Cajun II site.

JRC removed its equipment but was not able to remove the stockpiled Grey Stone.

At the time LaGen awarded HRI the LaGen/HRI Agreement for Big Cajun

II in 2011, IM also held exclusive marketing agreements with Entergy for the

Nelson Power Station and with Cleco for the Rodemacher and Dolet Hills Power

Stations, and the Madison 3 Unit. Thus, HRI was the exclusive marketing agent of

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all sources of C- 618 fly ash produced in Louisiana from 2011 until 2014. Once

HRI took over the exclusive marketing agreement for Big Cajun II in 2011, there

was an initiative by HRI to increase fly ash prices previously paid by former Big

River customers to a level HRI considered to be the " competitive price."

Following the termination of the LaGen/ Big River Agreement and the

resulting termination of the JRC/ Big River Agreement, JRC could not sustain its

business and eventually ceased all business operations.

In 2014, HRI' s competitor, Charah, became the exclusive marketing agent for the
Rodemacher Power Station and Madison 3 Unit.

PROCEDURAL HISTORY

On January 26, 2012, JRC filed a petition seeking damages from IM and

NRG and LaGen ( hereinafter collectively referred to as NRG/LaGen). 2 JRC filed

several amending petitions, ultimately filing a First Amended Master Petition for

Damages, wherein JRC sought compensatory and treble damages from HRl and

NRG/LaGen due to their alleged: ( 1) wrongful conversion and conspiracy to

commit conversion of JRC' s stockpiled inventory of Grey Stone; ( 2) violations of

the Louisiana Unfair Trade Practices and Consumer Protection Law (" LUTPA"),

La. R.S. 51: 1401, et M.;and ( 3) violations of Louisiana' s antitrust law, including

a conspiracy to restrain trade by fixing prices of C- 618 fly ash marketed in

Louisiana in violation of La. R.S. 51: 122, and a conspiracy to monopolize the C-

618 fly ash market in Louisiana in violation of La. R.S. 51: 123. 3

With regard to its antitrust claims, JRC alleged that F RI and Cleco, Entergy,

and NRG/LaGen had entered into a horizontal conspiracy in restraint of trade.

First, it alleged that HRl, as the common and exclusive marketing agent for Cleco,

Entergy, and NRG/LaGen, operated a hub -and -spoke conspiracy on behalf of these

power companies by setting uniform prices, taking orders, and allocating

customers and production territory for coal ash they produced. Additionally, JRC

averred that Cleco, Entergy, and NRG/LaGen knew or should have known that

EM was simultaneously representing their collective competitive business

interests from 2011 through 2014. Thus, JRC alleged that a per se illegal

2JRC referred to NRG and LaGen collectively in its First Amended Master Petition, and
NRG and LaGen together filed pleadings below and in this appeal.
3l previous petitions, JRC had contended that HRI and NRG/LaGen had attempted to
restrain trade and monopolize " the CCP market" or the market for " CCPs and related products."
However, in its First Amended Master Petition for Damages, it more narrowly contended that
these defendants had engaged in antitrust violations with regard to " Louisiana' s C- 618 fly ash
industry."

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horizontal price- fixing agreement could be inferred from the parallel behavior of

these various entities. 4

Alternatively, JRC alleged that URI and NRG/LaGen entered into a vertical

price-fixing conspiracy when they executed the LaGen/ HRI Agreement. With

regard to this alleged conspiracy, JRC alternatively alleged that this vertical price-

fixing conspiracy was subject to the per se mode of analysis, the " quick look"

approach, or the full rule -of r-eason analysis.

With regard to its monopoly claims, JRC averred that HRI and NRG

officials conspired to create the monopoly that HRI ultimately exerted following

the LaGen/HRI Agreement and that they conspired to monopolize and did

monopolize the C- 618 fly ash market in violation of La. R.S. 51: 123.

JRC further alleged that HRI and NRG/LaGen were solidarily liable for

JRC' s damages resulting from their concerted and collective actions, which

constituted intentional and willful acts.

JRC filed a motion for partial summary judgment on the issues of per se

antitrust mode of analysis and joint venture, seeking a declaration that: ( 1) HRI had

entered into joint venture agreements with Cleco, Entergy, and NRG/LaGen;

and/ or (2) the per se antitrust mode of analysis was applicable to this matters

4A noted by the trial court in its written reasons for judgment, neither Cleco nor Entergy
are parties to this litigation.
5JRC' s motion for partial summary judgment was actually filed prior to the filing of its
First Amended Master Petition for Damages. The motion was scheduled for hearing together
with exceptions of no cause of action filed by HRI and NRG/LaGen with regard to JRC' s
previous " Master Petition for Damages." Following that hearing, the trial court sustained the
exceptions of no cause of action related to all of JRC' s antitrust claims under La. R.S. 51: 122
and 51: 123, dismissing those claims without prejudice, subject to JRC' s right to amend within
thirty days. Accordingly, it also denied as moot JRC' s motion for partial summary judgment.
JRC then filed its First Amended Master Petition for Damages, and HRI and NRG/ LaGen again
filed exceptions of no cause of action.
However, on appeal of the trial court' s subsequent judgment sustaining those exceptions
of no cause of action and dismissing JRC' s antitrust claims with prejudice, this court reversed the
judgment sustaining the exceptions of no cause of action and also vacated the earlier judgment
denying JRC' s motion for partial summary judgment as moot. In doing so, this court noted that
because the trial court' s rulings with respect to the exceptions of no cause of action had been
reversed, JRC' s motion for partial summary judgment on the issues of per se antitrust mode of
analysis and joint venture was " ripe for judicial determination." Thus, this court remanded the
matter with instructions that the trial court " consider and rule on JRC' s motion for partial

8

Defendant F RI also filed a motion for partial summary judgment, seeking

dismissal of JRC' s antitrust claims under both La. R.S. 51: 122 and 51: 123. 6 In

support of its motion, HRI contended that it was entitled to dismissal of JRC' s

antitrust claims against it as follows: ( 1) JRC could not establish antitrust injury

because its alleged injuries did not flow from the claimed anticompetitive conduct;

2) HRI' s alleged conduct was subject to the rule of reason because JRC has

identified nothing more than a series of vertical agreements; and ( 3) JRC' s rule of

reason and monopoly claims fail because the market alleged by JRC— the 50 -mile

radius extending from Big Cajun II—was not the relevant market.

Likewise, NRG/LaGen filed a motion for partial summary judgment,

seeking dismissal of JRC' s antitrust claims, averring that those claims should be

dismissed because: ( 1) JRC had not suffered an antitrust injury; and ( 2) even if

JRC could establish an antitrust injury, it had not alleged and could not prove a

horizontal conspiracy between NRG, LaGen, and HRI or any agreement among

those parties to restrain trade.'

Following a hearing on the motions, the trial court, by judgment dated

December 4, 2019, denied JRC' s motion for partial summary judgment; granted in

part HRI' s and NRG/LaGen' s motions for summary judgment as to JRC' s per se

antitrust claims under La. R.S. 51: 122; and denied in part those motions as to

summary judgment." John River Cartage, Inc. v. Louisiana Generating, LLC, 2018- 1611 ( La.
App. Pt Cir. 12/ 19/ 18), 2018 WL 6629472 * 6 ( unpublished), writs denied, 2019- 0122, 2019-
0111 ( La. 4/ 15/ 19), 267 So. 3d 1122, 1129.
On remand, JRC moved to reset its motion for partial summary judgment.
6Defendants HRI and NRG/LaGen also filed motions for partial summary judgment,
seeking dismissal of JRC' s conversion and conspiracy to commit conversion claims, contending
that JRC could not establish that it owned the Grey Stone product it accused them of converting.
7I its memorandum in support of its motion, NRG/ LaGen further stated that it joined in
HRI' s motion for partial summary judgment as to JRC' s antitrust claims and adopted HRI' s
arguments.

9

JRC' s monopoly claim under La. R.S. 51: 123. 8

JRC appealed the trial court' s December 4, 2019 judgment, challenging,

through six assignments of error, those portions of the judgment denying its motion

for partial summary judgment and granting HRI' s and NRG/LaGen' s motions for

partial summary judgment as to JRC' s per se antitrust claims, dismissing those

claims with prejudice.' HRI and NRG/LaGen also appealed the trial court' s

December 4, 2019 judgment, each contending through two assignments of error

that the trial court erred in denying their motions for partial summary judgment as

to JRC' s monopoly claims.

LEGAL PRECEPTS

Summary Judgment

A motion for summary judgment is a procedural device used when there is

no genuine issue of material fact for all or part of the relief prayed for by a litigant.

A summary judgment is reviewed on appeal de novo, with the appellate court using

the same criteria that govern the trial court's determination of whether summary

judgment is appropriate; i.e., whether there is any genuine issue of material fact,

and whether the movant is entitled to judgment as a matter of law. Beer Indus.

League ofLouisiana v. City ofNew Orleans, 2018- 0280 ( La. 6/ 27/ 18), 251 So. 3d

The burden of proof rests with the mover. La. C. C. P. art. 966( D)( 1). When

the mover will bear the burden of proof at trial, the mover has the burden of

showing that no genuine issue of material fact remains. Only when the mover

makes this showing does the burden shift to the opposing party to present evidence

sAs to HRI' s and NRG/LaGen' s motions for partial summary judgment seeking dismissal
of JRC' s conversion claims, in its written reasons, the trial court found that genuine issues of
material fact remained as to those claims. Accordingly, in its December 4, 2019 judgment, the
trial court also denied those motions. Neither HRI nor NRG/ LaGen has appealed that portion of
the judgment, and, thus, the conversion claims are not before us.
As set forth in La. R.S. 51: 135, all interlocutory judgments in cases involving antitrust
claims shall be appealable within five days and shall be heard and determined within twenty days
after the appeal is lodged.

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demonstrating a material factual issue remains. Action Oilfield Services, Inc. v.

Energy Management Company, 2018- 1146 ( La. App. 1st Cir. 4/ 17/ 19), 276 So. 3d

538, 541- 542. If, however, the mover does not resolve all material issues of fact,

the burden never shifts to the opposing party. In that situation, the opposing party

has nothing to prove in response to the motion for summary judgment, and

summary judgment should be denied. See Hat' s Equipment, Inc. v. WHM,

L.L.C., 2011- 1982 ( La. App. 1st Cir. 5/ 4/ 12), 92 So. 3d 1072, 1076.

Nevertheless, if the mover will not bear the burden of proof at trial on the

issue raised in the motion, the mover's burden on the motion does not require it to

negate all essential elements of the adverse party's claim, action, or defense, but

rather to point out to the court the absence of factual support for one or more

elements essential to the adverse party's claim, action, or defense. Thereafter, the

burden is on the adverse party to produce factual support sufficient to establish the

existence of a genuine issue of material fact or that the mover is not entitled to

judgment as a matter of law. La. C. C. P. art. 966( D)( 1). Because it is the

applicable substantive law that determines materiality, whether a particular fact in

dispute is material can only be seen in light of the substantive law applicable to the

case. Pumphrey v. Harris, 2012- 0405 ( La. App. 1st Cir. 11/ 2/ 12), 111 So. 3d 86,

Conspiracy in Restraint of Trade Pursuant to La. R.S. 51: 122

Louisiana Revised Statutes 51: 122( A) provides, " Every contract,

combination in the form of trust or otherwise, or conspiracy, in restraint of trade or

commerce in this state is illegal." This statute is virtually identical to Section 1 of

the Sherman Antitrust Act, 15 U.S. C. § 1, et seq., and federal analysis of the

Sherman Antitrust Act is persuasive, though not controlling. 10 HPC Biologicals,

10The Louisiana statute applies to intrastate commerce, whereas the Sherman Antitrust
Act applies to interstate commerce and foreign trade. See La. R.S. 51: 121, La. R.S. 51: 122, &
15 U.S. C. § 1.

11

Inc. v.
UnitedHealthcare of Louisiana, Inc., 2016- 0585 ( La. App. 1St Cir.

5/ 26/ 16), 194 So. 3d 784, 792- 93.

The federal and state antitrust laws were intended to be sweeping in breadth,

encompassing every conspiracy, contract, or combination that restrains trade.

Louisiana Power & Light Co. v. United Gas Pipe Line Co., 493 So. 2d 1149,

1154- 55 & n. 12 ( La. 1986). Not every business arrangement that restrains trade in

some manner is illegal, however. Rather, La. R.S. 51: 122 has been interpreted to

prohibit only those agreements or conspiracies that unreasonably restrain trade.

See Reppond v. City of Denham Springs, 572 So. 2d 224, 230 ( La. App. 1St Cir.

1990), and Clary v. State Farm Mutual Automobile Ins. Co., 2016- 168 ( La. App.

3rd Cir. 11/ 23/ 16), 204 So. 3d 1102, 1113, writs denied, 2017- 0209, 2017- 0197

La. 2/ 15/ 17), 215 So. 3d 702, 703. Thus, to establish an antitrust violation, a

plaintiff must show both the existence of a conspiracy to restrain trade and that the

intended restraint on trade is unreasonable. See Nafrawi v. Hendrick Medical

Center, 676 F. Supp. 770, 774 ( N.D. Tex. 1987).

As to the existence of an agreement to restrain trade, the plain language of

La. R.S. 51: 122 requires a plurality of actors. A " contract," a " combination," and a

conspiracy" each suggests the participation of more than one person or entity.

Louisiana Power & Light Co., 493 So. 2d at 1155. In determining whether the

restraint of trade is unreasonable, three methods or modes of analysis have been

developed for evaluating the reasonableness of a restraint on trade: the rule -of -

reason analysis, the per se analysis, and the " quick look" analysis. Craftsmen

Limousine, Inc. v. Ford Motor Co., 363 F. 3d 761, 772 ( 8th Cir. 2004).

The rule -of r-eason analysis, which is used to analyze the reasonableness of

most trade -restraining agreements, requires the factfinder to determine whether the

questioned practice imposes an unreasonable restraint on competition
by

considering a variety of factors, including specific information about the relevant

12

business, its condition before and after the restraint was imposed, and the restraint' s

history, nature, and effect. State Oil Co. v. Khan, 522 U.S. 3, 10, 118 S. Ct. 275,

279, 139 L. Ed. 2d 199 ( 1997).

Unlike the rule -of r-eason analysis, the per se analysis does not allow inquiry

into the intent behind the restraint, its procompetitive justifications, or its actual

effect on competition. Instead, where a restraint is deemed per se unreasonable, a

conclusive presumption of illegality applies." Craftsmen Limousine, Inc., 363

F. 3d at 773.

As a general rule, horizontal agreements, those involving coordination

between competitors at the same level of a market structure, are considered to be

per se unreasonable, whereas vertical agreements, created between parties at

different levels of a market structure, are analyzed under the rule -of r-eason

analysis. Van Hoose v. Gravois, 2011- 0976 ( La. App. 1St Cir. 7/ 7/ 11), 70 So. 3d

1017, 1022.

Monopoly Pursuant to La. R.S. 51: 123

Louisiana Revised Statutes 51: 123 provides, in part, that "[ n] o person shall

monopolize, or attempt to monopolize, or combine, or conspire with any other

person to monopolize any part of the trade or commerce within this state." As an

economic matter, monopoly power exists where prices can be raised above the

levels that would be charged in a competitive market. To establish a claim for

monopoly, a plaintiff must establish that: ( 1) the defendant possessed monopoly

I to third method of analyzing whether a conspiracy is unreasonable is the abbreviated
quick look" analysis under the rule of reason, which is applied when " an observer with even a
rudimentary understanding of economics could conclude that the arrangements in question
would have an anticompetitive effect on customers and markets." California Dental Assn v.
Fed. Trade Comm' n, 526 U. S. 756, 770, 119 S. Ct. 1604, 1612, 143 L. Ed. 2d 935 ( 1999). The
quick -look approach does not require an elaborate industry analysis. Rather, when the restraint
is not per se unreasonable, but the likelihood of anticompetitive effects is obvious, the proponent
of the restraint must show some competitive justification for it. Thus, once the restraint is
deemed facially anticompetitive, the burden shifts to its proponent for justification on
procompetitive grounds. Realcomp H, Ltd. v. Fed. Trade Comm' n, 635 F. 3d 815, 825 ( 6`h Cir.),
cert. denied, 565 U. S. 942, 132 S. Ct. 400, 181 L. Ed. 2d 257 ( 2011).

13

power in a clearly defined economic and geographic region ( the relevant market);

and ( 2) the defendant had the specific purpose or intent to exercise or maintain that

power, as distinguished from growth or development as a consequence of a

superior product, business acumen, or historic accident. Plaquemine Marine, Inc.

v. Mercury Marine, 2003- 1036 ( La. App. 1st Cir. 7/ 25/ 03), 859 So. 2d 110, 119-

20.

Monopoly power is defined as the ability to control prices or to exclude

competition from the market, and the relevant market is the area of effective

competition within which the defendant operates. Id. It includes a geographic

market, which is the section of the country in which sellers of a particular product

operate, as well as a product market, which encompasses the differences among

various commodities and the willingness of buyers to substitute one product for

another. Failure to define the market in which the monopoly is allegedly exercised

is fatal to a monopolization claim. Id. at 120.

DISCUSSION

From a review of the pleadings and memoranda filed herein, JRC' s basic

theories of antitrust violations can be summarized as follows. HRI, operating at

the marketing and sales level of the Louisiana CCPs market, facilitated a scheme

among Cleco, Entergy, and NRG/LaGen, competing producers of CCPs at the

production level of the Louisiana CCPs market, to restrain trade within that

market. This scheme was accomplished by first eliminating competition in the

Louisiana CCPs market by replacing Big River, NRG/LaGen' s prior exclusive

marketing agent, with HRI, which already operated as the exclusive marketing

agency for Cleco and Entergy. Thereafter, HRI, operating as the common and

exclusive sales agency for all three of these competing power companies, refused

to deal with JRC by refusing to sell hydrated fly ash or excess powdered fly ash to

JRC, thereby preventing JRC from continuing its production and sale of Grey

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Stone in the secondary CCPs market. With Big River and JRC effectively

removed from the Louisiana CCPs market, ERI, as the common and exclusive

sales agency for Cleco, Entergy, and NRG/LaGen, and representing their collective

business interests, stabilized Louisiana' s CCPs market by imposing uniform price

increases and controlling output.

JRC contends that this alleged conspiracy among ERI, Cleco, Entergy, and

NRG/LaGen constitutes a horizontal restraint on trade that, under the per se

antitrust mode of analysis, is deemed per se unreasonable in violation of La. R. S.

51: 122. Alternatively, JRC alleges that the conspiracy in restraint of trade was a

vertical price- fixing conspiracy between HRI and NRG/LaGen. Finally, JRC

alleges that these actions constituted a conspiracy to monopolize in violation of La.

R. S. 51: 123.

The various motions for partial summary judgment addressed in the trial

court' s December 4, 2019 judgment focus on different aspects of these claims.

Denial of JRC' s Motion for Partial Summary Judgment on the Issues of Per
Se Antitrust Mode of Analysis and Joint Venture
JRC' s Assignments of Error Nos. 1 and 6)

While JRC alternatively alleged in its First Amended Master Petition for

Damages both a horizontal conspiracy and a vertical conspiracy in restraint of

trade, in its motion for partial summary judgment, JRC focused on the horizontal

conspiracy, seeking judgment declaring: ( 1) that ERI had entered into joint venture

agreements with Cleco, Entergy, and NRG/LaGen; and/or ( 2) that, given the law

affecting joint venture, common and exclusive sales agency, or hub -and -spoke

conspiracies, the per se antitrust mode of analysis was applicable to this matter.

In support of its motion, JRC alleged that when ERI entered into exclusive

marketing agreements with Cleco, Entergy, and NRG/LaGen, M entered into

separate joint ventures for the sales of CCPs with each of these power companies.

Additionally, it contended that the per se antitrust analysis applied to the alleged

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conspiracy herein under three alternative theories: ( 1) HRI, as a common member

of separate horizontally competing joint ventures with NRG/LaGen, Entergy, and

Cleco, engaged in prohibited antitrust violations by fixing prices, allocating market

territory, and refusing to deal with JRC on behalf of the three horizontal joint

ventures; or ( 2) NRG/LaGen, Entergy, and Cleco delegated pricing, ordering, and

production/market allocation to HRI as their common and exclusive sales agency,

with the known and express purpose of fixing and stabilizing CCP commodity

prices; or ( 3) HRI and NRG/LaGen, Entergy, and Cleco entered into a hub -and -

spoke conspiracy by use of a common sales agency to carry out the unlawful

scheme of fixing and stabilizing CCPs prices. JRC further averred that each of the

three alternatively alleged arrangements between HRI and the power companies

resulted in a horizontal restraint of trade, thus requiring application of the per se

antitrust mode of analysis.

In denying JRC' s motion, the trial court concluded in written reasons for

judgment that JRC had failed to submit any factual support of a joint venture

between HRI and Cleco, Entergy, or NRG/LaGen or of a horizontal conspiracy to

restrain trade among these various entities. Thus, the court further reasoned that

because JRC had failed to set forth facts to establish the existence of a conspiracy,

there was no need to address the various theories alleged by JRC as requiring

application of the per se antitrust mode of analysis.

On appeal, JRC contends in its sixth assignment of error that the trial court

legally erred when it " defied" this court' s instruction in the prior appeal in John

River Cartage, Inc. v. Louisiana Generating, LLC, 2018- 1611 ( La. App. 1St Cir.

12/ 19/ 18), 2018 WL 6629472 at * 6 ( unpublished), writs denied, 2019- 0122, 2019-

0111 ( La. 4/ 15/ 19), 267 So. 3d 1122, 1129, " by refusing to categorize the unlawful

common selling agency alleged herein as a jurisprudentially recognized form of

per se illegal horizontal agreement." However, as set forth in footnote 5 above, in

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the prior appeal in this matter, this court, having reversed and vacated the trial

court' s rulings on defendants' exceptions of no cause of action, noted that JRC' s

motion for partial summary judgment, which the trial court had denied as moot,

was " ripe for judicial determination." Thus, this court remanded the matter for the

trial court to " consider and rule on JRC' s motion for partial summary judgment,"

John River Cartage, Inc., 2018 WL 6629472 at * 6, which is precisely what the

trial court did when it denied JRC' s motion, finding that JRC had not proved its

entitlement to summary judgment in its favor. Thus, we reject JRC' s contention

that the trial court defied any prior instruction in our prior decision.

Moreover, in light of our conclusion, as more fully discussed below, that the

trial court properly dismissed JRC' s per se antitrust claims on HRI' s and

NRG/LaGen' s motions for partial summary judgment, we find it unnecessary to

address JRC' s contention in assignment of error number one that the trial court

erred in failing to categorize the alleged unlawful common selling agency as a per

se illegal horizontal agreement. Accordingly, we decline to address this issue and

affirm the portion of the trial court' s December 4, 2019 judgment denying JRC' s

motion for partial summary judgment.

Trial Court' s Partial Grant of HRI' s and NRG/LaGen' s Motions for Partial
Summary Judgment and Resulting Dismissal of JRC' s Per Se Antitrust
Claims under La. R.S. 51: 122
JRC' s Assignments of Error Nos. 2, 3, 4 & 5)

Next we turn to JRC' s challenge to the portion of the trial court' s judgment

granting in part HRI' s and La/Gen' s motions for partial summary judgment and

dismissing JRC' s per se antitrust claims. At the outset, we address JRC' s

contention that the trial court erred in deciding the issue of conspiracy on partial

summary judgment where JRC had not been given a fair opportunity for discovery

on this issue. The requirement in La. C. C. P. art. 966( A)(3) that a summary

judgment should be considered only after " an opportunity for adequate discovery"

17

has been construed to mean that there is no absolute right to delay action on a

motion for summary judgment until discovery is complete; rather, the requirement

is only that the parties have a fair opportunity to carry out discovery and to present
1st
their claim. Primeaux v. Best Western Plus Houma Inn, 2018- 0841 ( La. App.

Cir. 2/ 28/ 19), 274 So. 3d 20, 32. Additionally, trial courts in Louisiana have broad

discretion when regulating pre-trial discovery, which discretion will not be

disturbed on appeal absent a clear showing of abuse. Id.

We note that JRC' s action has been pending since January of 2012. As early

as September of 2015, TRC amended its petition to assert antitrust violations

involving an alleged conspiracy in restraint of trade, again amending its petition in

August of 2017, to allege that the horizontal conspiracy involved FRI, Cleco,

Entergy, and NRG/LaGen. Moreover, HM first sought dismissal of these antitrust

claims in a motion for summary judgment it filed in February of 2017, thus

affording JRC ample notice that this issue would be before the trial court.

Accordingly, we find no clear abuse of the trial court' s discretion in declining to

delay ruling on this issue.

Turning to the merits of this claim, to satisfy the elements of conspiracy, a

plaintiff must show that the defendants engaged in concerted action, meaning a

conscious commitment to a common scheme designed to achieve an unlawful

objective. See HPC Biologicals, Inc., 194 So. 3d at 793. Moreover, to establish a

per se unreasonable horizontal conspiracy, a plaintiff must establish that the

conspiracy involved coordination between competitors at the same level of a

market structure. See Van Hoose, 70 So. 3d at 1022. Independent parallel

conduct, or even conduct among competitors that is consciously parallel, does not

alone establish the contract, combination, or conspiracy. Camsoft Data Systems,

Inc. v. Southern Electronics Supply, Inc., 2018- 1609 ( La. App. 1St Cir. 12/ 3/ 18),

18

276 So. 3d 1053, 1059, writs denied, 2018- 02088, 2018- 02018 ( La. 2/ 11/ 19), 263

So. 3d 1151, 1153.

Because JRC would have the burden of proof at trial to establish the

existence of a horizontal conspiracy, F RI and NRG/LaGen only had to point to the

absence of factual support for one element of that claim. In support of their

motions, they asserted in part that there was an absence of factual support for an

essential element of a per se antitrust violation under any of the theories JRC

alleged, because there is no evidence of the existence of any agreement or

conspiracy among Cleco, Entergy, and NRG/ LaGen. We find that MU and

NRG/LaGen met that initial burden.

Thus, once FM and NRG/LaGen successfully pointed to the lack of

evidence of Cleco or Entergy engaging in any concerted actions with NRG/LaGen

in furtherance of an alleged horizontal scheme in restraint of trade or of any

knowledge or acquiescence by Cleco or Entergy to such a scheme, the burden

shifted to JRC. JRC then had to produce factual support sufficient to establish the

existence of a genuine issue of material fact as to a horizontal conspiracy in

restraint of trade or that HRI and NRG/LaGen were not entitled to judgment as a

matter of law. La. C. C. P. art. 966( D)( 1).

On appeal, JRC contends in its second and fifth assignments of error that it

did produce factual support to establish the existence of genuine issues of material

fact regarding: ( 1) an unlawful horizontal conspiracy among the power companies

through either: ( a) direct evidence of an unlawful common sales agency

conspiracy, or ( b) circumstantial evidence of a hub -and -spoke conspiracy

coordinated by their common sales agency; or ( 2) a horizontal conspiracy by virtue

19

of a joint venture between HRI and Entergy and between HRI and Cleco,
12
respectively.

A. Joint Venture

Addressing JRC' s joint venture claim first, JRC avers that the trial court

erred in dismissing its per se antitrust claims where it demonstrated the existence

of genuine issues of material fact as to the existence of joint ventures between HRI

and Cleco, HRI and Entergy, and HRI and NRG/LaGen. Under this theory, JRC

posits that because HRI was a common member of individual joint -venture

partnerships with Cleco and Entergy, HRI' s actions in inviting NRG/LaGen to join

in a price- fixing and market -territory -allocation scheme were taken in the capacity

of a pure, non -vertical, direct competitor, thus constituting horizontal action in

restraint of trade.

A joint venture has been defined as a special combination of two or more

persons, where in some specific venture a profit is jointly sought without any

actual partnership or corporate designation. Coffee Bay Investors, L.L. C. v

W.O.G.C. Company, 2003- 0406 ( La. App. 1St Cir. 4/ 2/ 04), 878 So. 2d 665, 670,

writ denied, 2004- 1084 ( La. 6/ 25/ 04), 876 So. 2d 838. Generally, the essential

elements of a joint venture are the same as those of partnership, i.e., two or more

parties combining their property, labor, skill, etc. in the conduct of a venture for

joint profit, with each having some right of control. Cajun Electric Power

Cooperative, Inc. v. McNamara, 452 So. 2d 212, 215 ( La. App. 1St Cir.), writ

denied, 458 So. 2d 123 ( La. 1984). Thus, joint ventures are governed by the law of

partnership and share the same requisites as follows: ( 1) a contract between two or

more persons; ( 2) the establishment. of a juridical entity or person; ( 3) contribution

12 We note that JRC contends in its fourth assignment of error that the trial court erred in
concluding in its reasons for judgment that JRC could not establish a horizontal agreement
absent first establishing a joint venture. Because this court reviews summary judgments de novo,
we afford no deference to the trial court' s underlying reasoning for its judgment. King v. Allen
Court Apartments, 2015- 0858 ( La. App. 1st Cir. 12/ 23/ 15), 185 So. 3d 835, 839, writ denied,
2016- 0148 ( La. 3/ 14/ 16), 189 So. 3d 1069. Accordingly, we need not address this argument.

20

by all parties of either efforts or resources; ( 4) contribution in determinate

proportions; ( 5) joint effort; ( 6) mutual risk vis- a- vis losses; and ( 7) a sharing of

profits. Cajun Electric Power Cooperative, Inc., 452 So. 2d at 215.

Based on our de novo review of the evidence, we conclude that JRC has

failed to demonstrate a genuine issue of material fact as to several of these

elements. Regarding joint effort, the power companies produce energy, and CCPs

are merely a byproduct of that energy production. Because the accumulation of

these CCPs can impede the energy -production process, these power companies

contracted with HRI to manage these byproducts by transporting them out of the

production and surrounding areas either for marketing and sale or alternatively for

relocation to designated sites on the various plant premises. HRI alone was

responsible for the efforts in transporting the CCPs from the production areas for

sale or placement in other designated areas.

With regard to the element of the sharing of profits, while JRC contends that

Entergy and Cleco shared " net profits with IM, a review of the marketing

agreements of record does not support that contention. Rather, HRI was

compensated for the sale of fly ash and other CCPs under various formulas: a

percentage of gross sales; a fixed per -ton price for CCPs sold; or a combination of

a fixed component, a variable component and a percentage of net proceeds ( sales

revenues minus third -party transportation and handling costs for delivery to

customer only).

Additionally, regarding mutual risk vis-a-vis losses, HRI bore the risk of any

losses it suffered in fulfilling these contractual duties. While HRI was allowed to

account for some of its costs in the calculation of its compensation under the

various agreements, it bore the responsibility of many of the costs associated with

its contractual duties. IM also bore the additional risk in some situations of

required shortfall payments for its failure to sell designated tonnage amounts of

CCPs. Thus, the risk of whether its ultimate calculated compensation under the

various marketing agreements covered or exceeded all of its other costs and

resulted in profits was borne solely by HM, such that JRC cannot demonstrate a

genuine issue of material fact as to this element either.

Accordingly, JRC is unable to carry its burden of demonstrating the

existence of an issue of material fact as to whether the marketing agreements HRI

entered into with Cleco or Entergy, or NRG/LaGen, constituted joint ventures or,

consequently, whether a horizontal conspiracy in restraint of trade existed by virtue

of HRI' s actions as a pure, non -vertical, direct competitor of NRG/ LaGen.

B. Unlawful Common Sales Agency Agreement

Turning next to JRC' s claim of a horizontal conspiracy through the use of a

common sales agency, we note that not all common selling agency agreements

violate antitrust laws. See Virginia Excelsior Mills, Inc. a Federal Trade

Commission, 256 F. 2d 538, 541 ( 4t' Cir. 1958). However, such an agreement does

violate antitrust laws where it is used as a concerted action by two or more

horizontal competitors to accomplish a purpose that could not be lawfully

accomplished " by a direct agreement among the participating producers." Id.

In Virginia Excelsior Mills, Inc., the United States Fourth Circuit Court of

Appeals held that an agreement among competing producers to eliminate

competition among themselves was a per se violation of Section 1 of the Sherman

Antitrust Act. The competing producers organized a new corporation, the stock of

which the competing producers owned and the board of directors for which was

selected from among the competing producers. The new corporation then entered

into identical contracts with each producer -stockholder appointing the new

corporation as each producer' s exclusive sales agent. Moreover, by agreement of

the producers, orders were to be allocated among them on the basis of their relative

productive capacities, and no producer would increase its productive capacity.

22

Virginia Excelsior Mills, Inc., 256 F. 2d at 539- 540. As such, the underlying

agreement of these competitors to use a common selling agency to achieve their

unlawful purpose was well established by evidence of a direct agreement or

conspiracy among all of these competitors through the use of a separately created

entity, owned and controlled by the horizontal competitors.

Nonetheless, given the absence of any evidence herein of such direct

agreement among the power companies to use their common sales agency HRI for

an unlawful purpose, JRC contends that it was never obligated to prove the

horizontal agreement by direct communications among the power companies.

Rather, citing United States v. Masonite Corporation, 316 U.S. 265, 275, 62 S. Ct.

1070, 1075- 1076, 86 L. Ed. 1461 ( 1942), JRC asserts that a plaintiff may establish

the existence of a horizontal agreement by offering direct evidence of a common

agent engaging in prohibited conduct for the group of horizontal competitors

pursuant to the " express delegation, acquiescence, or understanding" of the

competing horizontal members. See Masonite, 316 U.S. at 276, 62 S. Ct. at 1076.

Moreover, JRC argues that it presented a genuine issue of fact of a horizontal

conspiracy by offering direct evidence of HRI setting uniform market prices and

controlling output pursuant to contractual delegation and/or acquiescence of Cleco,

Entergy, and NRG/LaGen.

However, based on our de novo review of the evidence submitted, there is no

evidence that HRI controlled output of fly ash or any other CCPs produced by

Cleco, Entergy, or NRG/LaGen. To the contrary, a review of the marketing

agreements of record demonstrates that the power companies controlled their own

energy production levels and their own internal use of CCPs they produced, which,

in turn, determined the quantity of CCPs made available for marketing. The

Entergy marketing agreements for the Nelson Power Station indicate that the

amount of ash available under the marketing agreement would be determined by

23

the operation of Nelson Unit 6, which operation would be controlled by Entergy
in its absolute discretion." Entergy further reserved the right to use any part of

the CCPs produced by Nelson Unit 6. Similarly, the Cleco marketing agreements

contained provisions indicating either that the quantity of ash produced would vary

depending on many factors involved in plant operations, that Cleco made no

guarantee as to quantity of ash that would be made available, or that Cleco would

not alter its power supply to ensure a volume of ash. Cleco also reserved the right

to use CCPs for its own benefit and even reserved the right to donate fly ash

produced at the Dolet Hills Power Station for various purposes. Finally, the

LaGen/HRI Agreement also provided that LaGen expressly made no warranties as

to the quantity of CCPs and reserved the right to use CCPs produced at Big Cajun

11 for its own purposes.

Moreover, JRC failed to demonstrate the existence of a genuine issue of

material fact as to the alleged acquiescence by Cleco or Entergy in any such

scheme in a concerted effort to restrain trade. The record demonstrates that HW

contracted with these power companies years or even decades apart. URI ( or its

predecessors) first contracted with Cleco ( and its predecessors) in 1981 with regard

to fly ash and other CCPs produced at the Rodemacher Power Station and

thereafter in 2003 for fly ash produced at the Dolet Hills Power Station. FM (or

its predecessors) first contracted with Entergy ( and its predecessors) in 1986 for

ash marketing services at the Nelson Power Station. By contrast, it did not

contract with NRGlLaGen until 2011.

Further, there is no evidence that either Cleco or Entergy had any knowledge

of M's marketing agreements with each other or with NRG1LaGen, or of URI' s

marketing efforts on behalf of those other entities. Nor is there any evidence that,

in executing these marketing contracts years apart, the power companies agreed to,

or even later acquiesced in, a scheme to fix market prices and control output.

24

Accordingly, we conclude that JRC failed to demonstrate the existence of a

genuine issue of material fact as to an alleged horizontal conspiracy by Cleco,

Entergy, and NRG/LaGen, implemented by HRI as their common sales agency, by
either contractual delegation or acquiescence.

C. Hub -and -Spoke Conspiracy

JRC next contends that it demonstrated a genuine issue of material fact of a

horizontal agreement in restraint of trade by offering circumstantial evidence of a

hub -and -spoke" conspiracy. A hub -and -spoke conspiracy is one in which an

entity at one level of the market structure, the " hub," coordinates an agreement

among competitors at a different level, the " spokes." U.S. v. Apple, Inc., 791

F. 3d 290, 314 ( 2"d Cir. 2015), cert. denied sub nom., U.S. , 136 S. Ct.

1376, 194 L. Ed. 2d 360 ( 2016). A traditional hub -and -spoke conspiracy has three

elements: ( 1) a hub, such as a dominant purchaser; ( 2) spokes, such as competing

manufacturers or distributors that enter into vertical agreements with the hub; and

3) the rim of the wheel, which consists of horizontal agreements among the

spokes. In re Musical Instruments and Equipment Antitrust Litigation, 798 F. 3d

1186, 1192

Where no direct evidence exists for the third element, a horizontal

agreement among the spokes ( or competitors), courts evaluate circumstantial

evidence, called " plus factors," to determine whether a plaintiff' s evidence is more

probative of conspiracy than of conscious parallel behavior. In re Disposable

Contact Lens Antitrust, 215 F. Supp. 3d 1272, 1294 ( M.D. F1. 2016). Plus factors

are economic actions and outcomes that are largely inconsistent with unilateral

conduct, but largely consistent with explicitly coordinated action. Accordingly,

they may raise an inference of conspiracy. Id. at 1294- 1295. These plus factors

include: ( 1) a common motive to conspire, ( 2) evidence showing that the parallel

acts were against the apparent individual economic self- interest of the alleged

25

conspirators, ( 3) evidence of a high level of interfirm communications, and ( 4)

historically unprecedented changes in pricing structure made at the very same time
by multiple competitors for no other discernible reason. Id. at 1295 Apple, Inc.,

791 F. 3d at 315. JR.0 contends on appeal that it presented factual support

demonstrating issues of material fact as to these plus factors and, thus, that

summary judgment dismissing its per se antitrust claims was inappropriate.

First, regarding a common motive to conspire, JRC contends that there was a

common motive to conspire because of excess supply of CCPs and Big River and

M's " historical pricing competition," which " tended to" drive prices of CCPs

downward or neutral. Based upon our de novo review of the summary judgment

evidence, JRC did present some evidence from its economist that the price of

CCPs was generally trending downward from 2008 through 2010.

Secondly, JRC contends that the each power company' s separate marketing

agreement with M was not in the individual company' s economic self-interest

where each " contractually relinquished [ its] right to individually compete for CCPs

sales" by authorizing HRI to centrally manage and control prices and output.

However, JRC presented no evidence that the marketing agreements, entered into

by the power companies years and even decades apart, were against their

individual self -interests. Regarding controlling output, as discussed above, output

of CCPs is determined by energy production levels, which are controlled by the

individual power companies, and the quantity of CCPs made available for

marketing is further dependent upon the power companies' discretionary use of the

CCPs they produce. Additionally, the Cleco contracts of record for the Dolet Hills

Power Station required minimum sales levels of CCPs with penalty payments for

failure to meet those minimums, and the Entergy marketing agreement for the

Nelson Power Station specifically provided that the marketing contractor would

use its best efforts to market all ash delivered under the agreement. ( Emphasis

26

added). These contractual provisions demonstrate that the power companies'

overall objective was simply to remove CCPs from their premises — not, as JRC

suggests, that they conspired through the use of marketing agreements to authorize

HU to control prices against their individual self i-nterests.

As to interfirm communications, JRC points to a letter from HRI to

NRG/LaGen evidencing a possible scheme to raise prices. In the letter, HRI, in an

attempt to gain the NRG/LaGen marketing contract, indicated that HRI managed

all other sources of C- 618 fly ash produced in the State of Louisiana" and that

HRI' s involvement with Big Cajun II " could present significant opportunities for

both companies to increase sales and to maximize pricing of the products."

Regarding the fourth plus factor, JRC did present evidence that the price of

CCPs in Louisiana, while generally trending downward from 2008 through 2010,

leveled off in 2011, just as the LaGen/ IM Agreement was executed, and then

began to rise. Additionally, JRC offered evidence that once HRI entered into the

LaGen/ HRI Agreement, HRI instituted an initiative to raise prices for CCPs

produced by Big Cajun II because HRI believed that the prices previously charged

by Big River were below the " competitive rate. This initiative was further

evidenced by HRI' s email communication to one customer, identified as a former

incrementally raising prices to that customer for an
Big River customer,

unidentified product over a seven- month period from February to September of

2011, shortly after HRI became the marketing agency for NRG/LaGen.

Nonetheless, based on our de novo review of the limited evidence upon

which JRC relies to support the plus factors, we conclude that JRC did not

demonstrate a genuine issue of fact as to whether a horizontal agreement among

the power companies should be inferred. Specifically, while the evidence offered

suggests that CCPs prices were generally trending downward from 2008 to 2010

and thereafter stabilized and began increasing, the graph presented by JRC' s

27

economist is not broken down by prices charged individually by Cleco, Entergy,

and NRG/LaGen. Thus, it is impossible to discern from the graph which of the

power companies may have experienced decreasing prices or whether the upward

trend in prices was a result of an increase in prices " by multiple competitors." See

In re Disposable Contact Lens Antitrust, 215 F. Supp. 3d at 1295.

Additionally, as discussed above, the language of the various marketing

agreements does not suggest that they were against the individual economic self -

interests of the power companies. And the written communications from HRI to

NRG/ LaGen represent vertical communications between a marketing agency and

one producer, wherein HRI suggested that HRI and NRG/LaGen could maximize

pricing. JRC offered no evidence of any interfirm communications among or

between the horizontal power companies Cleco, Entergy, or NRG/LaGen to

suggest a conspiracy among them, and no communications between HRI and Cleco

or Entergy, much less a high level of such communications. Moreover, the written

communication from HRI to NRG/LaGen and the evidence of HRI' s initiative to

raise prices for CCPs produced by Big Cajun II indicates price changes for that one

CCPs producer alone. Id.

Accordingly, JRC failed to carry its burden of demonstrating a genuine issue

of material fact as to whether a horizontal agreement among the power companies

should be inferred. As such, there is likewise no genuine issue of fact as to

whether HRI, Cleco, Entergy, and NRG/LaGen entered into a hub -and -spoke

conspiracy. Having failed to demonstrate an issue of fact as to a horizontal

conspiracy under any of the theories it has advanced, JRC has failed to establish

that HRI and NRG/LaGen are not entitled to summary judgment dismissing JRC' s

per se antitrust claims. Thus, the portion of the trial court' s December 4, 2019

judgment dismissing JRC' s per se antitrust claims is likewise affirmed.

28

Trial Court' s Denial in Part of HRI' s and NRG/LaGen' s Motions for Partial
Summary Judgment Seeking Dismissal of JRC' s
La. R.S. 51: 123 Monopoly Claim
HRI' s and NRG/ LaGen' s Assignments of Error Nos. 1 & 2)

In their appeals of the trial court' s December 4, 2019 judgment, HRI and

NRG/LaGen both contend that the trial court erred in denying in part their motions

for partial summary judgment and refusing to dismiss JRC' s monopoly claims

under La. R.S. 51: 123. HRI and NRG/LaGen each assert that the trial court erred

in failing to grant its motion for summary judgment on the monopoly claims: ( 1)

where JRC did not suffer antitrust injury; and ( 2) where JRC failed to define a

geographic market.

With regard to antitrust injury, a plaintiff suffers an antitrust injury only if its

loss is the type of loss that the claimed antitrust violation is likely to cause. HPC

Biologicals, Inc., 194 So. 3d at 797. " Antitrust injury" is defined as the type of

injury that the antitrust laws were intended to prevent and that flows from that

which makes the defendants' acts unlawful. The requirement of an antitrust injury

ensures that a plaintiff can recover only if the loss stems from a competition -

reducing aspect or effect of the defendants' behavior. Id. A plaintiff must allege a

causal connection between its alleged injury and the anticipated anticompetitive

effect of the specific practice that allegedly violates antitrust law. BRFHH

Shreveport, LLC v. Willis Knighton Medical Center, 176 F. Supp. 3d 606, 626

W.D. La. 2016).

HRI and NRG/LaGen assert that JRC did not suffer antitrust injury because

it did not pay increased prices and, thus, did not suffer the " anticipated

anticompetitive effect" of an alleged monopoly. According to HRI and

NRG/ LaGen, the causal connection here is lacking. They contend that the

anticipated anticompetitive effect of an alleged monopoly is that the monopolist

will raise prices to anticompetitive levels. Asserting that JRC never bought C- 618

29

fly ash directly from LaGen, NRG or HRI and, thus, never paid increased prices,

defendants claim that JRC did not suffer the harm a monopoly is likely to cause.

However, the antitrust injury claimed by JRC is not that it was forced to pay

higher prices for CCPs, but rather that it suffered antitrust injury from HRI' s

refusal to deal with JRC. A unilateral refusal to deal generally is not unlawful.

However, a monopolist' s refusal to deal becomes actionable under the antitrust

laws where the refusal is designed to have an anticompetitive effect, whether to

gain market share, to drive up prices, or to obtain some other illegal goal. Mr.

Furniture Warehouse, Inc. is Barclays American/ Commercial, Inc., 919 F. 2d

1517, 1522 ( 11th Cir. 1, 990), cert. denied sub nom., 502 U.S. 815, 112 S. Ct. 68,

116 L. Ed. 2d 43 ( 1991). Thus, monopolistic or other anticompetitive intent is the

key factor in determining whether an antitrust violation has occurred. See Id.

In the instant case, JRC presented evidence suggesting that HRI refused to

deal with JRC once HRI became the marketing agency for NRG/LaGen. However,

questions of material fact remain as to this issue. HRI and NRG/LaGen contend,

nonetheless, that the sole exception to a company' s lawful right to refuse to deal

with its competitors is where a monopolist seeks to terminate a prior voluntary

course of dealing with a competitor. See In re Elevator Antitrust Litigation, 502

F. 3d 47, 52 ( 2nd Cir. 2007). According to HRI and NRG/LaGen, JRC cannot

establish a refusal -to -deal claim because JRC had no preexisting relationship with

HRl or NRG/LaGen.

However, JRC notes that HRI was representing Cleco, Entergy, and

NRG/LaGen as their exclusive marketing agency, for CCPs sales at the time FM

allegedly refused to deal. with JRC. Accordingly, JRC asserts that HRI' s actions

on behalf of all of the power companies would have effectively prevented JRC

from dealing with any of these power companies. Additionally, JRC contends that

a genuine issue of fact remains as to whether it had a prior legally enforceable

30

relationship with NRG/ LaGen. Considering the foregoing and based on our review

of the summary judgment evidence, we conclude that disputed issues of fact

remain as to whether JRC suffered antitrust injury because of a refusal to deal.

With regard to the relevant geographic market, the geographic element of

the relevant market consists of the area in which sellers of the defendants' product

operate and to which buyers can practicably turn to obtain that product. State ex

rel. Ieyoub v. Racetrac Petroleum, Inc., 2001- 0458 ( La. App. 3rd Cir. 6/ 20/ 01),

790 So. 2d 673, 679. Thus, the issue of geographic market is also a fact -intensive

inquiry. Based on our de novo review of the evidence submitted, we likewise

conclude that issues of fact remain as to the relevant geographic market.

Accordingly, HRI and NRG/LaGen were not entitled to dismissal of JRC' s

monopoly claims on summary judgment. As such, the portion of the trial court' s

December 4, 2019 judgment denying in part HRI' s and NRG/LaGen' s motions for

partial summary judgment as to JRC' s monopoly claims is affirmed.

CONCLUSION

For the above and foregoing reasons, the trial court' s December 4, 2019

judgment, denying the motion for partial summary judgment of plaintiff, John

River Cartage, Inc., and granting in part and denying in part the motions for partial

summary judgment filed by defendants, Headwaters Resources, Inc. and Louisiana

Generating, LLC and NRG Energy, Inc., is affirmed. Costs of this appeal are

assessed one- third to John River Cartage, Inc., one- third to Headwaters Resources,

Inc., and one-third to Louisiana Generating, LLC and NRG Energy, Inc.

AFFIRMED.

31