Opinion
HHDCV095042760S
09-12-2016
KennyNick, LLC et al. v. Standard Petroleum Company
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON MOTIONS FOR CLASS ACTION CERTIFICATION
Donna Nelson Heller, J.
Before the court are the renewed motions for class certification filed on November 2, 2015 by (i) the plaintiffs KennyNick, LLC (KennyNick) and Faugno Acquisition, LLC n/k/a Woodway Texaco, LLC (Faugno) in the matter styled KennyNick, LLC v. Standard Petroleum Company, Docket No. HHD-CV-09-5042760-S (the KennyNick action) (#163.00), and (ii) the defendants Faugno, Gene A. Faugno, III, and Michael A. Faugno, Sr. in the matter styled Standard Petroleum Company, Inc. v. Faugno Acquisition, LLC, Docket No. HHD-CV-09-5042762-S (the Faugno action) (#174.00). Standard Petroleum Company (Standard Petroleum), as the defendant in the KennyNick action and the plaintiff in the Faugno action, filed a memorandum in opposition, together with a supporting affidavit of George McCloskey, vice president of Standard Petroleum, and related exhibits on December 14, 2015 (#164.00; #165.00 KennyNick action) (#175.00; #176.00 Faugno action). The KennyNick/Faugno parties filed a reply memorandum in each matter on January 25, 2016 (#173.00 KennyNick action) (#184.00 Faugno action).
The plaintiffs in the KennyNick action and the defendants in the Faugno action are referred to collectively herein as the KennyNick/Faugno parties.
The procedural history of these consolidated matters prior to September 1, 2015 is set forth in detail in the court's previous ailing on Standard Petroleum's motions for determination of denial of class certification in the KennyNick action (#124.00) and the Faugno action (#133.00) and the KennyNick/Faugno parties' first motions in support of class certification (#129.00 KennyNick action) (#137.00 Faugno action). On August 31, 2015, the court (Heller, J.) denied class certification without prejudice to the KennyNick/Faugno parties' renewing their motions following discovery (#129.02 KennyNick action) (#137.02 Faugno action).
The court heard argument from counsel on the class certification motions and other pending motions in these consolidated cases on February 1, 2016. The court reserved decision at that time. By order entered on July 1, 2016, the court granted the KennyNick/Faugno parties' motions for class certification and stated that this articulation would follow (#163.01 KennyNick action) (#174.01 Faugno action).
Standard Petroleum's motions for summary judgment (#166.00 KennyNick action) (#177.00 Faugno action) and the parties' motions relating to discovery issues (#168.00; #169.00 KennyNick action) (#179.00; #180.00 Faugno action) were also argued on February 1, 2016 and have been addressed separately (see #166.02; #168.01; #168.02 KennyNick action) (#177.02; #179.01; #179.02 Faugno action).
On July 18, 2016, Standard Petroleum filed a notice of appeal to the Appellate Court in both actions of the court's order granting class certification (#179.00 KennyNick action) (#190.00 Faugno action). Standard Petroleum filed an application for referral of both actions to the Complex Litigation Docket on August 2, 2016 (#182.00 KennyNick action) (#193.00 Faugno action). The court (Bright, J.) granted the applications on September 1, 2016 (#182.01 KennyNick action) (#193.01 Faugno action). On August 24, 2016, Standard Petroleum filed a motion for articulation in each appeal (A.C. 39424 KennyNick appeal) (A.C. 39423 Faugno appeal). This articulation is provided in accordance with the court's July 1, 2016 orders in the KennyNick and Faugno actions and in response to the motions for articulation filed in the pending appeals.
I
Purporting to assert their claims on behalf of themselves and all other persons and/or entities which are or were supplied with gasoline products by Standard Petroleum from September 27, 2004 to date, the KennyNick/Faugno parties set forth six causes of action against Standard Petroleum in the second amended complaint and the second amended counterclaim: breach of contract (Count I); unjust enrichment (Count II); violation of the Connecticut Petroleum Franchise Act, General Statutes § 42-133j et seq. (Count III); violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110b et seq. (Count IV); violation of the Uniform Commercial Code, General Statutes § § 42a-1-203, 42a-2-103, and 42a-2-305(2) (Count V); and misrepresentation (Count VI). The KennyNick/Faugno parties allege that their claims arise from Standard Petroleum's (i) charging federal gasoline tax on each gallon of fuel sold to members of the proposed class at an incorrect rate, and (ii) improperly invoicing class members for the state gross receipts tax based on the price of gasoline as delivered, when the tax was to be applied only on the first sale of petroleum products in Connecticut.
September 27, 2004 to date is the relevant time period for the claims relating to the state gross receipts tax, as described herein. January 1, 2005 through December 31, 2011 is the relevant time period for the claims relating to the federal volumetric ethanol excise tax credit, also discussed below.
August 21, 2015, the court (Heller, J.) granted in part and denied in part the request of the KennyNick/Faugno parties for leave to amend the original complaint and counterclaim in these consolidated actions. The court directed the KennyNick/Faugno parties to file pleadings that were amended in accordance with the court's ruling on or before September 14, 2015. Rather than file amended pleadings, the KennyNick/Faugno parties sought further leave to amend the complaint and the counterclaim (#170.00; #171.00 KennyNick action) (#181.00; #182.00 Faugno action). Standard Petroleum objected to the request on January 29, 2016 (#176.00 KennyNick action) (#187.00 Faugno action). The court granted the KennyNick/Faugno parties' second request for leave to amend and overruled Standard Petroleum's objection on February 2, 2016 (#170.01; #176.01 KennyNick action) (#181.01; 187.01 Faugno action).
The KennyNick/Faugno parties allege the following in support of their claims against Standard Petroleum and their motions for class certification. Standard Petroleum is a wholesale supplier of gasoline. KennyNick and Faugno are service station operators. They were franchised Standard Petroleum dealers during the relevant time period, discussed below. They purchased gasoline from Standard Petroleum for resale to their customers. The KennyNick/Faugno parties claim that Standard Petroleum improperly charged and collected state and federal gasoline taxes when it sold gasoline to them and to the other members of the proposed class of Standard Petroleum customers during the relevant time period.
The Connecticut gasoline tax at issue is the gross receipts tax, also known as the gross earnings tax, that is imposed pursuant to General Statutes § 12-587 and § 12-602-1a of the Regulations of Connecticut State Agencies on the first sale of gasoline in the state. The gravamen of the KennyNick/Faugno parties' claim relating to the gross receipts tax is that Standard Petroleum improperly charged the gross receipts tax to its customers, including KennyNick and Faugno, based on the price of gasoline as delivered--a price which included Standard Petroleum's profit and the cost of delivery--and not on the first sale. The KennyNick/Faugno parties contend that the relevant time period is from September 27, 2004 to date for their state gross receipts tax claim.
The KennyNick/Faugno parties also contend that Standard Petroleum improperly calculated the gross receipts tax before applying the federal volumetric ethanol excise tax credit (VEETC) that was effective between January 1, 2005 and December 31, 2011. Standard Petroleum's alleged failure to give its customers the benefit of the VEETC when it charged them for federal gasoline tax on their purchases is the gravamen of the KennyNick/Faugno parties' federal gasoline tax claim.
The KennyNick/Faugno parties' claim relating to the federal gasoline tax involve the application of the volumetric ethanol excise tax credit (VEETC) that was in effect from January 1, 2005 to December 31, 2011. The VEETC initially reduced the federal tax on gasoline that included 10 percent alcohol--which is the gasoline/alcohol mixture used in Connecticut--from 18.4 cents per gallon to 13.3 cents per gallon. Effective January 1, 2009, the VEETC was lowered from 5.1 cents per gallon to 4.5 cents per gallon, so that the federal tax increased to 13.9 cents per gallon. The VEETC expired on December 31, 2011. The KennyNick/Faugno parties' federal gasoline tax claim arise from Standard Petroleum's charging its customers, including the KennyNick/Faugno parties, the full federal gasoline tax of 18.4 cents per gallon without applying the VEETC during the time that it was in effect. The relevant time period for the KennyNick/Faugno parties' federal gasoline tax claim--from January 1, 2005 to date--falls within the relevant time period for their state gross receipts tax claim--i.e., from September 27, 2004 to date.
Based on their review of documents produced by Standard Petroleum in this action, the KennyNick/Faugno parties have identified at least eighty-one potential members of the proposed class of Standard Petroleum gasoline customers during the relevant time period of September 27, 2004 to date. Forty-four of these potential class members were retail gasoline stations that had supply contracts with Standard Petroleum. The remaining thirty-seven potential class members appear to have purchased gasoline on an as-invoiced basis.
Standard Petroleum provided a redacted list of 126 customers in its document production.
Standard Petroleum contends that it had only twenty-eight dealers and twenty-five lessees during the relevant time period, as discussed below.
The KennyNick/Faugno parties delineate four separate sub-groups of customers in the group of forty-four Standard Petroleum. gasoline customers with supply contracts: eight customers who were so-called " guaranteed profit dealers"; ten customers who purchased gasoline at posted or listed prices at the time and place of delivery; twenty-three customers who purchased gasoline at posted or listed prices at the time and place of delivery and who had a rebate program based upon a terminal rack price; and two " rack plus" customers, who purchased gasoline on essentially the same terms as the customers with a rebate program. There was also one Standard Petroleum gasoline customer whose contract fell into more than one sub-group. The supply contract between Standard Petroleum and each of these forty-four customers contains the following language: " Unless otherwise specified, prices include taxes, duties, fees or other charges which Company may be required to collect or pay pursuant to any present or future laws, orders and regulations of any governmental authority."
The contracts of the twenty-three Standard Petroleum rebate program customers and the two rack plus customers also reflect that the prices or rebates are " plus all applicable taxes and trucking."
The thirty-seven Standard Petroleum customers identified as potential class members that did not have supply contracts were customers that purchased gasoline from Standard Petroleum and paid Standard Petroleum for the gasoline pursuant to invoices received upon or after delivery. According to the KennyNick/Faugno parties, based on their review of a " substantial sampling" of the more than 14, 000 invoices produced by Standard Petroleum in discovery, the invoices appear to be almost identical to the invoices that the KennyNick/Faugno parties received for payment. Standard Petroleum included the federal gasoline tax, at the full rate of 18.4 cents per gallon, and the state gross receipts tax, based on the as-delivered price, on the form invoices that it presented for payment to these customers.
The forty-four Standard Petroleum customers that had supply contracts were also invoiced for their gasoline purchases. The form invoices to these customers reflected the same charges for the federal gasoline tax and the state gross receipts tax that were included on the invoices to the thirty-seven Standard Petroleum customers that did not have supply contracts.
The KennyNick/Faugno parties contend that the proposed class is so numerous that joinder of all members is impracticable. They argue that common questions of law and fact exist as to all members of the class and predominate over any questions that would only affect individual members of the class, including legal and factual issues relating to liability and damages. The KennyNick/Faugno parties claim that management of this action as a class action will not be difficult because the class is readily definable, the method of calculating each class member's damages will be identical, and prosecution of the suit as a class action will eliminate the possibility of repetitive litigation. They maintain that their claims are typical of the claims of the class; their interests are identical to those of other class members; they have retained able counsel; and they will fairly and adequately represent and protect the interests of the class.
As discussed below, the KennyNick/Faugno parties contend that the damages of each class member can be calculated with two simple mathematical formulas--one for the state gross receipts tax claim, and a second for the federal gasoline tax claim.
II
" The rules of practice set forth a two-step process for trial courts to follow in determining whether an action or claim qualifies for class action status." (Citation omitted; internal quotation marks omitted.) New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 433, 471, 970 A.2d 592 (2009). " First, a court must ascertain whether the four prerequisites to a class action, as specified in Practice Book § 9-7, are satisfied. These prerequisites are: (1) numerosity--that the class is too numerous to make joinder of all members feasible; (2) commonality--that the members have similar claims of law and fact; (3) typicality--that the [representative] plaintiffs' claims are typical of the claims of the class; and (4) adequacy of representation--that the interests of the class are protected adequately . . . (Citation omitted; footnote added; internal quotation marks omitted.) Neighborhood Builders, Inc. v. Madison, 294 Conn. 651, 658, 986 A.2d 278 (2010). " Second, if the foregoing criteria are satisfied, the court then must evaluate whether the certification requirements of Practice Book § 9-8 are satisfied. These requirements are: (1) predominance--that questions of law or fact common to the members of the class predominate over any questions affecting only individual members; and (2) superiority--that a class action is superior to other available methods for the fair and efficient adjudication of the controversy . . ." (Citation omitted; internal quotation marks omitted.) Artie's Auto Body, Inc. v. Hartford Fire Insurance Co., 287 Conn. 208, 214, 947 A.2d 320 (2008). " Because our class certification requirements are similar to those embodied in rule 23 of the Federal Rules of Civil Procedure, and our jurisprudence governing class actions is relatively undeveloped, we look to federal case law for guidance in construing the provisions of Practice Book § § 9-7 and 9-8." (Citation omitted.) Collins v. Anthem Health Plans, Inc., 275 Conn. 309, 322-23, 880 A.2d 106 (2005) (Collins II ).
Practice Book § 9-7 provides that " [o]ne or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class."
Practice Book § 9-8 provides that " [a]n action may be maintained as a class action if the prerequisites of Section 9-7 are satisfied, and in addition: (1) the prosecution of separate actions by or against individual members of the class would create a risk of: (A) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class; or (B) adjudications with respect to individual members of the class which would, as a practical matter, be dispositive of the interests of the other members who are not parties to the adjudications or substantially impair or impede their ability to protect their interests, or (2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or (3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of class action."
" [I]n determining whether to certify the class, a [trial] court is bound to take the substantive allegations of the complaint as true . . . That does not mean, however, that a court is limited to the pleadings when determining whether the requirements for class certification have been met. On the contrary . . . [t]he class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the [plaintiffs'] cause of action . . . and . . . it [sometimes] may be necessary for the court to probe behind the pleadings before coming to rest on the certification question . . . In determining the propriety of a class action, [however] the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits . . . but rather whether the requirements of [the class action rules] are met . . ." (Citation omitted; internal quotation marks omitted.) New Hartford v. Connecticut Resources Recovery Authority, supra, 291 Conn. at 471. " A trial court nonetheless has broad discretion in determining whether a suit should proceed as a class action . . . [D]oubts regarding the propriety of class certification should be resolved in favor of certification." (Citation omitted; internal quotation marks omitted.) Neighborhood Builders, Inc. v. Madison, supra, 294 Conn. at 657.
A
The first requirement for class certification under Practice Book § 9-7 is " numerosity" --that " the class is so numerous that joinder of all members is impracticable . . ." Practice Book § 9-7. " [P]ursuant to Connecticut's limited jurisprudence concerning the numerosity requirement, as well as analogous federal decisions to which we look for guidance, it is clear that a proper determination of numerosity is not through application of any rigid formula, but rather, by a flexible inquiry taking into account the entirety of the particular action. There is no magic number for determining whether, in a particular case, joinder of all putative parties will be impracticable . . . [R]ather [t]he issue is one to be resolved in light of the facts and circumstances of the case." (Citation omitted; internal quotation marks omitted.) New Hartford v. Connecticut Resources Recovery Authority, supra, 291 Conn. at 475.
" The plaintiff must show some evidence or a reasonable estimate of the number of class members." (Citation omitted.) Walsh v. National Safety Associates, Inc., 44 Conn.Supp. 569, 583, 695 A.2d 1095 (1996). " Though speculation about the size of the class will not suffice . . . an estimate based on reasonable inferences drawn from available facts satisfies the requirement--particularly where . . . more precise information is within the defendant's control." (Citation omitted.) Peruta v. Outback Steakhouse of Florida, Inc., 50 Conn.Supp. 51, 54, 913 A.2d 1160 (2006).
In their renewed motions for class certification, the KennyNick/Faugno parties have offered evidence from Standard Petroleum's document production demonstrating that the class that they seek to have certified has at least eighty-one potential members. According to the KennyNick/Faugno parties, each of these persons or entities purchased gasoline from Standard Petroleum during the period September 27, 2004 to date; they were charged federal gasoline tax at a rate of 18.4 cents per gallon on the gasoline they purchased; they did not receive the benefit of the VEETC, while it was in effect, on their gasoline purchases; and they were charged state gross receipts tax on their gasoline purchases based on the price of gasoline as delivered.
Standard Petroleum challenges the size of the potential class, contending that it had supply contracts with only twenty-eight dealers and twenty-five lessees during the relevant time period. It also claims that nine of the dealers and twenty-two of the lessees cannot participate in the potential class because they had arbitration clauses and/or jury waivers in their contracts. In addition, Standard Petroleum argues that twenty of the dealers and twenty-four of the lessees cannot be members of the class because their contracts contained attorneys fees provisions. In response, the KennyNick/Faugno parties contend that such contractual provisions are unenforceable and irrelevant to the question of class certification. They also argue that, to the extent that any of these provisions are deemed enforceable, Standard Petroleum has waived enforcement by participating in this litigation for years without asserting them.
It is premature for the court to decide on a motion for class certification whether such contractual provisions are enforceable. See In re Titanium Dioxide Antitrust Litigation, 962 F.Supp.2d 840, 846 (D.Md. 2013) (" In their opposition to class certification, the four original Defendants argued that some putative class members purchased titanium dioxide pursuant to contracts containing mandatory arbitration clauses, forum selection clauses, and class action and jury trial waivers, all of which would contractually bar them from participating in this class action . . . Though these contractual provisions did not defeat class certification, this Court left open the possibility of a later amendment to the class certification Order if certain members' contracts rendered them atypical of the class." (Citation omitted.))
For purposes of determining whether to grant class certification, the court must accept the KennyNick/Faugno parties' allegations as true. They have sufficiently shown that the potential class has at least eighty-one members, based in large measure on Standard Petroleum's own documents. Whether, as Standard Petroleum contends, some of these potential class members should be excluded from the class by reason of specific provisions in their particular contracts is not before the court at this time. Even if Standard Petroleum is correct, however, that would still leave a potential class of at least thirty-seven members--well within the range of forty class members that, as our Supreme Court has noted, " should raise a presumption that joinder is impracticable." (Citations omitted; internal quotation marks omitted.) New Hartford v. Connecticut Resources Recovery Authority, supra, 291 Conn. at 475 n.35. See also Grant v. Sullivan, 131 F.R.D. 436, 446 (M.D.Pa. 1990) (" [t]his Court may certify a class even if it is composed of as few as 14 members"). The KennyNick/Faugno parties have satisfied the numerosity requirement under Practice Book § 9-7.
B
" Commonality" is the second prerequisite for class certification under Practice Book § 9-7. The party seeking class action status must demonstrate that " there are questions of law or fact common to the class . . ." Practice Book § 9-7(2). " The threshold of commonality is not high . . . It requires only the same legal or remedial theory for the class claim." (Citation omitted; internal quotation marks omitted.) Peruta v. Outback Steakhouse of Florida, Inc., supra, 50 Conn.Supp. 54. As our Supreme Court has observed, " this requirement is easily satisfied because there need only be one question common to the class." (Citations omitted.) Collins v. Anthem Health Plans, Inc., 275 Conn. 309, 323, 880 A.2d 106 (2005). " Although the presence of individualized questions is relevant to the predominance and superiority requirements of Practice Book § 9-8, most courts have held that factual variations among class members will not prevent a finding of commonality." (Citations omitted.) Id. at 325.
The members of the potential class of Standard Petroleum customers in this case share these common facts: (i) they purchased gasoline from Standard Petroleum during the period September 27, 2004 to date; (ii) they were charged federal gasoline tax at a rate of 18.4 cents per gallon; (iii) they did not receive the benefit of the VEETC, while it was in effect; and (iv) they were charged state gross receipts tax on their gasoline purchases based on the price of gasoline as delivered, which included Standard Petroleum's profit and delivery charges. In addition, the claims of the potential class members depend upon the answers to these common questions: (i) whether Standard Petroleum charged its customers for federal gasoline tax at an incorrect rate because it did not apply the VEETC during the period that it was in effect, and (ii) whether Standard Petroleum improperly charged its customers the state gross receipts tax on the price of gasoline as delivered. The KennyNick/Faugno parties have, therefore, satisfied the commonality requirement of Practice Book § 9-7.
C
The third prerequisite for class certification under Practice Book § 9-7 is " typicality" --that " the claims or defenses of the representative parties are typical of the claims or defenses of the class." Practice Book § 9-7(3). " The typicality requirement, as with most of the requirements for class certification, concerns whether the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence." (Citation omitted; internal quotation marks omitted.) Collins v. Anthem Health Plans, Inc., 266 Conn. 12, 27, 836 A.2d 1124 (2003) ( Collins I ). " When it is alleged that the same unlawful conduct was directed at or affected both the named plaintiff and the class sought to be represented, the typicality requirement is usually met irrespective of minor variations in the fact patterns underlying individual claims." (Citation omitted; internal quotation marks omitted.) Peruta v. Outback Steakhouse of Florida, Inc., supra, 50 Conn.Supp. at 56.
Standard Petroleum challenges the typicality of the KennyNick/Faugno parties' claims. In particular, Standard Petroleum claims that the KennyNick/Faugno parties will have to " devote a great deal of attention and legal fees" to proving their damages, and the other potential class members will have to establish their damages through individualized proof in like fashion. To the extent that Standard Petroleum contends that the KennyNick/Faugno parties and other potential class members may not have been damaged at all if they simply passed on the taxes by increasing the retail price for the gasoline that they purchased from Standard Petroleum and sold to their customers, that argument--the so-called " passing-on" defense--is rejected. See Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481, 489, 88 S.Ct. 2224, 20 L.Ed.2d 1231 (1968) (" [I]f the buyer, responding to the illegal price, maintains his own price but takes steps to increase his volume or to decrease other costs, his right to damages is not destroyed. Though he may manage to maintain his profit level, he would have made more if his purchases from the defendant had cost him less. We hold that the buyer is equally entitled to damages if he raises the price for his own product. As long as the seller continues to charge the illegal price, he takes from the buyer more than the law allows. At whatever price the buyer sells, the price he pays the seller remains illegally high, and his profits would be greater were his costs lower"). See also Neighborhood Builders, Inc. v. Madison, Superior Court, judicial district of Waterbury, Docket No. X01-CV-04-4005268-S, (Oct. 12, 2007, Cremins, J.), aff'd, 294 Conn. 651, 986 A.2d 278 (2010) (rejecting passing-on argument raised to defeat class certification and concluding that any liability of defendant attached when putative class members paid allegedly excessive building permit fees, notwithstanding that some putative class members may have passed on fees to others such as homeowners).
Standard Petroleum also maintains that the KennyNick/Faugno parties have unique issues, claims, and defenses that are not typical of the class, citing its special defenses that apply only to KennyNick, Faugno and a limited number of dealers and lessees. It also points out that it has a prejudgment remedy in the amount of $43,743.53 against Faugno based on its complaint for breach of contract in the Faugno action, arising from Faugno's failure to pay its invoices. In addition, Standard Petroleum contends that the KennyNick/Faugno parties have claims as franchisees under the Petroleum Franchise Act that are not typical of the class insofar as potential class members are not Standard Petroleum franchisees.
As our Supreme Court observed in Collins I, " the commonality requirement is met if [the] plaintiffs' grievances share a common question of law or of fact . . . Typicality, by contrast, requires that the claims of the class representatives be typical of those of the class, and is satisfied when each class member's claim arises from the same course of events, and each class member makes similar legal arguments to prove the defendant's liability . . . The typicality criterion does not require that the factual background of each named plaintiff's claim be identical to that of all class members; rather, it requires that the disputed issue of law or fact occupy essentially the same degree of centrality to the named plaintiff's claim as to that of other members of the proposed class." (Citations omitted; internal quotation marks omitted.) Collins I, supra, 266 Conn. at 34.
The KennyNick/Faugno parties allege that they, like all other members of the proposed class, purchased gasoline from Standard Petroleum during the period September 27, 2004 to date. They contend that Standard Petroleum charged them federal gasoline tax at a rate of 18.4 cents per gallon on the gasoline they purchased and did not give them the benefit of the VEETC while it was in effect. They also maintain that Standard Petroleum charged state gross receipts tax on their gasoline purchases based on the price of gasoline, as delivered. The issues framed by these allegations are as central to the KennyNick/Faugno parties' claims as they are to the claims of the other potential class members. Accordingly, the KennyNick/Faugno parties have satisfied the typicality requirement.
D
To satisfy the fourth requirement under Practice Book § 9-7--" adequacy of representation" --the KennyNick/Faugno parties must show that they, as the " representative parties, " will " fairly and adequately protect the interests of the class." Practice Book § 9-7(4). " Adequacy . . . is measured by two standards. First, the attorney for the class must be qualified, experienced and generally able to conduct the litigation. Second, the class members must not have interests that are antagonistic to one another." (Citation omitted; internal quotation marks omitted.) Walsh v. National Safety Associates, Inc., supra, 44 Conn.Supp. at 586.
According to the KennyNick/Faugno parties, their counsel, the firm of Barr & Morgan, has " decades more petroleum franchise experience than any other law firm in Connecticut." They point out that Barr & Morgan attorneys were involved in the drafting of the Petroleum Franchise Act and its recent amendments, and the firm, or its predecessors, has litigated virtually every Connecticut case relating to the Petroleum Franchise Act or the federal Petroleum Marketing Practices Act, 15 U.S.C. § 2801 et seq. The court finds that the KennyNick/Faugno parties have retained qualified and experienced counsel to pursue this litigation.
Standard Petroleum does not contest the qualifications or experience of the KennyNick/Faugno parties' counsel; rather, it focuses on the adequacy of the KennyNick/Faugno parties to represent the proposed class. Standard Petroleum contends that the interests of the KennyNick/Faugno parties are antagonistic to those of the class. " To determine whether the representative parties' interests are antagonistic to those of the class, the court must consider whether there is likely to be a divergence in viewpoint or goals in the conduct of the suit." (Citations omitted; internal quotation marks omitted.) Connecticut Cooling Total Air, Inc. v. Connecticut Natural Gas Corp., 46 Conn.Supp. 82, 87, 738 A.2d 1167 (1999) . Citing McNerney v. Carvel, Superior Court, judicial district of Hartford, Docket No. CV-00-579244-S, (February 23, 2001, Solomon, J.), Standard Petroleum argues that the KennyNick/Faugno parties' interests are not aligned with other potential class members because they are former Standard Petroleum franchisees and other proposed class members are current customers or franchisees In addition, relying on Connecticut Cooling Total Air, Standard Petroleum argues that the KennyNick/Faugno parties would have to prove their damages by showing that had Standard Petroleum properly applied the VEETC, their sales would have increased--which, by inference, would mean that other class members' sales would have decreased--thus raising a conflict between members of the proposed class over the measure of damages and market share so as to defeat class certification. The court does not agree.
While there may be some individualized issues pertaining to damages, such issues will not preclude class certification, particularly when establishing the amount of damages for each class member will necessitate little more than simple mathematical calculations. " [N]umerous [federal] courts have recognized . . . that the presence of individualized damages issues does not prevent a finding that the common issues in the case predominate . . . [The plaintiffs] need only come forward with plausible statistical or economic methodologies to demonstrate impact on a class-wide basis . . . Particularly [when] damages can be computed according to some formula, statistical analysis, or other easy or essentially mechanical methods, the fact that damages must be calculated on an individual basis is no impediment to class certification." (Internal quotation marks omitted.) Artie's Auto Body, Inc. v. Hartford Fire Ins. Co., supra, 287 Conn. at 216. Accordingly, the KennyNick/Faugno parties have established that they and their counsel will adequately represent the interest of the potential class.
III
Having satisfied the requirements of Practice Book § 9-7, the KennyNick/Faugno parties must also meet the conditions set forth in Practice Book § 9-8 to obtain class certification. Under Practice Book § 9-8(3), the proponents of class certification must demonstrate that " the questions of law or fact common to the members of the class predominate over any questions affecting only individual members and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy." Practice Book § 9-8(3).
A
To satisfy the " predominance" requirement, the KennyNick/Faugno parties must show that class-wide issues predominate over issues that affect only individual class members. " [T]he fundamental purpose of the predominance inquiry is to determine whether the economies of class action certification can be achieved . . . without sacrificing procedural fairness or bringing about other undesirable results . . . [C]lass-wide issues predominate if resolution of some of the legal or factual questions that qualify each class member's case as a genuine controversy can be achieved through generalized proof, and if these particular issues are more substantial than the issues subject only to individualized proof." (Citation omitted; emphasis in original; internal quotation marks omitted.) Collins II, supra, 275 Conn. at 329.
" In order to determine whether common questions predominate, [a court must] . . . examine the [causes] of action asserted in the complaint on behalf of the putative class . . . Whether an issue predominates can only be determined after considering what value the resolution of the class-wide issue will have in each class member's underlying cause of action . . . Common issues of fact and law predominate if they ha[ve] a direct impact on every class members effort to establish liability and on every class member's entitlement to injunctive and monetary relief . . ." (Citation omitted; internal quotation marks omitted.) Artie's Auto Body, Inc. v. Hartford Fire Ins. Co., supra, 287 Conn. at 215.
" These standards inform us that a court should engage in a three part inquiry to determine whether common questions of law or fact predominate in any given case. First, the court should review the elements of the causes of action that the plaintiffs seek to assert on behalf of the putative class . . . Second, the court should determine whether generalized evidence could be offered to prove those elements on a class-wide basis or whether individualized proof will be needed to establish each class member's entitlement to monetary or injunctive relief . . . Third, the court should weigh the common issues that are subject to generalized proof against the issues requiring individualized proof in order to determine which predominate . . . Only when common questions of law or fact will be the object of most of the efforts of the litigants and the court will the predominance test be satisfied." (Citations omitted; internal quotation marks omitted.) Collins II, supra, 275 Conn. at 331-32.
The court will begin this three-part inquiry by turning to the elements of the six causes of action that the KennyNick/Faugno parties seeks to assert on behalf of the proposed class in the second amended complaint and the second amended counterclaim. In so doing, the court notes that " there is a distinction between identifying issues that the case will present for the purpose of deciding if class action status is warranted and deciding those issues on the merits." (Citation omitted.) Walsh v. National Safety Associates, Inc., supra, 44 Conn.Supp. at 581. " When the propriety of a class action is considered, the question is only whether the requirements set forth in the rules have been met and not whether the moving party has stated a cause of action or will prevail in the end." (Citations omitted.) Id. at 580.
According to Standard Petroleum, the KennyNick/Faugno parties allege two claims--for breach of contract and misrepresentation--under six different legal theories.
1
Count I of the second amended complaint in the KennyNick action and the second amended counterclaim in the Faugno action sets forth a cause of action for breach of contract. " In order to establish that each putative class member is entitled to damages stemming from the defendant's alleged breach of contract, the plaintiffs must prove that: (1) the defendant and the class member formed an agreement; (2) the class member performed under the agreement; (3) the defendant breached the agreement; and (4) the class member incurred damages . . . Furthermore, the plaintiffs must prove that the damages sustained by each class member were caused by the breach and were not the product of some other source." (Citation omitted.) Collins II, supra, 275 Conn. at 333.
Standard Petroleum contends that individualized proof will predominate on each potential class member's breach of contract claim because each of its customers will have to prove that it had a contract with Standard Petroleum and that it fully performed its obligations under that contract. The court does not agree. Whatever individualized proof as may be required to establish that a particular potential class member was a Standard Petroleum customer during the period from September 27, 2004 to date does not appear to be in dispute. Indeed, most of the documentation--supply contracts and invoices--will come from Standard Petroleum's own records. See Artie's Auto Body, Inc. v. Hartford Fire Insurance Co., supra, 287 Conn. at 219-20 (defendant's records as key evidence supporting certification). Once the members of the proposed class have made the threshold showing that they purchased gasoline from Standard Petroleum during the relevant time period, resolution of their breach of contract claims will turn on the common questions of whether Standard Petroleum charged them for federal gasoline tax at an incorrect rate because it did not give them the benefit of the VEETC, and whether Standard Petroleum improperly charged the state gross receipts tax on gasoline as delivered.
Standard Petroleum also argues that individual damage calculations will " overwhelm" the class questions, while the KennyNick/Faugno parties contend that each class member's damages can be determined through simple arithmetic. The KennyNick/Faugno parties propose the following formulas for calculating each class member's damages: (i) with respect to the gross receipts tax claim, the formula would be " Gallons x [(Delivered Price x Gross Receipts Tax)--(Rack Price x Gross Receipts Tax)], " and (ii) for the federal gasoline tax claim, the formula would be " Gallons x VEETC, " with the VEETC varying depending upon the calendar year. The court finds that mathematical calculations such as those contemplated by the KennyNick/Faugno parties' proposed formulas are unlikely to overwhelm the questions of law and fact common to members of the proposed class.
As discussed above, the court rejects the passing-on defense as a reason to deny class certification.
Ultimately, " [n]o matter how individualized the issue of damages may be, these issues may be reserved for individual treatment with the question of liability tried as a class action. Consequently, the mere fact that questions peculiar to each individual member of the class remain after the common questions of the defendant's liability have been resolved does not dictate the conclusion that a class action is impermissible." (Citation omitted; internal quotation marks omitted.) Collins I, supra, 266 Conn. at 37. The court finds that common issues of fact and law predominate in establishing the elements of the claim for breach of contract set forth in Count I of the second amended complaint and the second amended counterclaim.
2
The KennyNick/Faugno parties set forth a claim for unjust enrichment in Count II of the second amended complaint and the second amended counterclaim. " A right of recovery under the doctrine of unjust enrichment is essentially equitable, its basis being that in a given situation it is contrary to equity and good conscience for one to retain a benefit which has come to him at the expense of another . . . With no other test than what, under a given set of circumstances, is just or unjust, equitable or inequitable, conscionable or unconscionable, it becomes necessary in any case where the benefit of the doctrine is claimed, to examine the circumstances and the conduct of the parties and apply this standard . . . Unjust enrichment is, consistent with the principles of equity, a broad and flexible remedy . . . Plaintiffs seeking recovery for unjust enrichment must prove (1) that the defendants were benefited, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs' detriment." (Citations omitted; internal quotation marks omitted.) New Hartford v. Connecticut Resources Recovery Authority, supra, 291 Conn. at 451-52.
" It is often said that an express contract between the parties precludes recognition of an implied-in-law contract governing the same subject matter." (Citation omitted; footnote omitted; internal quotation marks omitted.) Id. at 454. " Nevertheless, when an express contract does not fully address a subject, a court of equity may impose a remedy to further the ends of justice." (Citations omitted; internal quotation marks omitted.) Id. at 455. In other words, " the existence of a contract, in itself, does not preclude equitable relief which is not inconsistent with the contract." (Citation omitted.) Rent-A-PC, Inc. v. Rental Management, Inc., 96 Conn.App. 600, 606, 901 A.2d 720 (2006). Moreover, " [p]arties routinely plead alternative counts alleging breach of contract and unjust enrichment, although in doing so, they are entitled only to a single measure of damages arising out of these alternative claims." (Citations omitted.) Stein v. Horton, 99 Conn.App. 477, 485, 914 A.2d 606 (2007). See also Practice Book § 10-25 (" [t]he plaintiff may claim alternative relief, based upon an alternative construction of the cause of action").
As the court found with respect to the KennyNick/Faugno parties' breach of contract claim, once the members of the proposed class have demonstrated that they purchased gasoline from Standard Petroleum during the relevant time period, their unjust enrichment claim will be determined by the common questions relating to the federal gasoline tax and the state gross receipts tax--i.e., whether Standard Petroleum charged the federal gasoline tax at an incorrect rate because it did not apply the VEETC, and whether Standard Petroleum improperly charged the state gross receipts tax on gasoline as delivered. Accordingly, the court finds that common issues of fact and law also predominate in establishing the elements of the claim for unjust enrichment set forth in Count II of the second amended complaint and the second amended counterclaim.
3
In Count III of the second amended complaint and the second amended counterclaim, the KennyNick/Faugno parties allege a cause of action under the Petroleum Franchise Act, in which they claim that Standard Petroleum violated § 42-133l(f) by charging them for federal gasoline tax at an incorrect rate because it did not give them the benefit of the VEETC, and by charging the state gross receipts tax on gasoline as delivered. The KennyNick/Faugno parties contend that all potential class members that had supply contracts with Standard Petroleum during the relevant time period were franchisees as defined in. General Statutes § 42-133k(5).
The KennyNick/Faugno parties allege that Standard Petroleum violated subdivisions (6), (7) and (9) of § 42-133l(f), which provides in pertinent part that " [n]o franchisor, directly or indirectly, through any officer, agent or employee, shall do any of the following . . . (6) fail to deal in good faith with a franchisee; (7) sell, rent or offer to sell to a franchisee any product or service for more than a fair and reasonable price; . . . (9) discriminate between franchisees in the charges offered or made for royalties, goods, services, equipment, rentals, advertising services, or in any other business dealing, unless (A) any such type of discrimination between franchisees would be necessary to allow a particular franchisee to fairly meet competition in the open market, or (B) to the extent that the franchisor satisfies the burden of proving that any classification of or discrimination between franchisees is reasonable, is based on franchises granted at materially different times and such discrimination is reasonably related to such difference in time or on other proper and justifiable distinctions considering the purposes of sections 42-133j to 42-133n, inclusive, and is not arbitrary . . ."
General Statutes § 42-133k(3) defines a " franchise relationship" as the " respective motor fuel marketing or distribution obligations and responsibilities of a franchisor and a franchisee which result from the marketing of motor fuel under a franchise." General Statutes § 42-133k(3). Under subsection (4) of § 42-133k, a " franchisor" is defined as " a refiner or distributor . . . who authorizes or permits under a franchise, a retailer or distributor to use a trademark in connection with the sale, consignment, or distribution of motor fuel." § 42-133k(4). Subsection (5) of § 42-133k defines a " franchisee" as " a retailer or distributor . . . who is authorized or permitted, under a franchise, to use a trademark in connection with the sale, consignment, or distribution of motor fuel." General Statutes § 42-133k(5).
In any claim brought under the Petroleum Franchise Act, the court must first determine whether there is a franchise relationship under the contract. Ackley v. Gulf Oil Corp., 726 F.Supp. 353, 367 (D.Conn. 1989). While individualized proof may be necessary to establish which of the potential class members were Standard Petroleum's franchisees, such proof will likely come from Standard Petroleum's own records and not be in dispute. Although neither the KennyNick/Faugno parties nor Standard Petroleum have suggested that the Standard Petroleum franchisees would constitute a sub-class for purposes of the Petroleum Franchise Act claim, it is apparent that the franchisees will be the only class members that can pursue this cause of action.
The language of § 42-133k was changed slightly in 1991 to correspond with the definitions in the federal Petroleum Marketing Practices Act, 15 U.S.C. § 2801, et seq. Public Acts 1991, No. 91-195 § 2. Although Ackley predates this amendment, it remains good law.
Once the members of the proposed class have shown that they purchased gasoline from Standard Petroleum as its franchisees during the relevant time period, the common questions of whether Standard Petroleum charged the federal gasoline tax at an incorrect rate because it did not apply the VEETC, and whether Standard Petroleum improperly charged the state gross receipts tax on gasoline as delivered, will determine their claims under the Petroleum Franchise Act. Accordingly, the court finds that common issues of fact and law predominate in establishing the Petroleum Franchise Act claims set forth in Count III of the second amended complaint and the second amended counterclaim.
4
In Count IV of the second amended complaint and the second amended counterclaim, the KennyNick/Faugno parties allege that Standard Petroleum violated CUTPA when it charged them for federal gasoline tax at an incorrect rate because it did not give them the benefit of the VEETC when it was in effect and improperly charged the state gross receipts tax on the price of gasoline as delivered. " To prevail on a CUTPA claim, the plaintiffs must prove that (1) the defendant engaged in unfair or deceptive acts or practices in the conduct of any trade or commerce . . . and (2) each class member claiming entitlement to relief under CUTPA has suffered an ascertainable loss of money or property as a result of the defendant's acts or practices . . . The ascertainable loss requirement is a threshold barrier which limits the class of persons who may bring a CUTPA action seeking either actual damages or equitable relief . . . Thus, to be entitled to any relief under CUTPA, a plaintiff must first prove that he has suffered an ascertainable loss due to a CUTPA violation." (Citations omitted; footnote omitted; internal quotation marks omitted.) Artie's Auto Body, Inc. v. Hartford Fire Ins. Co., supra, 287 Conn. at 217-18.
As discussed above with respect to Counts I, II, and III of the second amended complaint and the second amended counterclaim, the members of the proposed class will first have to establish that they purchased gasoline from Standard Petroleum during period September 27, 2004 to date. Once the class members have met that threshold requirement, their CUTPA claims will turn on the common questions of whether Standard Petroleum charged them for federal gasoline tax at an incorrect rate because it did not apply the VEETC, whether Standard Petroleum improperly charged the state gross receipts tax on gasoline as delivered, and whether Standard Petroleum's conduct in imposing such charges rose to the level of an unfair or deceptive act or practice under CUTPA. While each class member will have to demonstrate that it had an " ascertainable loss" to be entitled to relief under CUPTA, the simple mathematical calculations required to determine each class member's damages, as set forth above, are unlikely to overwhelm the common questions of law and fact. The court finds that common issues of fact and law predominate in establishing the elements of the CUPTA claim set forth in Count IV of the second amended complaint and the second amended counterclaim.
Standard Petroleum's arguments concerning the KennyNick/Faugno parties' CUPTA claim relate to the merits of the claim, which are not before the court when it is deciding a motion for class certification.
5
In Count V of the second amended complaint and the second amended counterclaim, the KennyNick/Faugno parties allege that Standard Petroleum violated the requirement of good faith under § 2-305 of the Uniform Commercial Code, General Statutes § 42a-2-305, by charging them for federal gasoline tax at an incorrect rate because it did not apply the VEETC when it was in effect and by improperly charging the state gross receipts tax on the price of gasoline as delivered. " Good faith" is defined in § 42a-1-201(b)(20) as " honesty in fact and the observance of reasonable commercial standards." General Statutes § 42a-1-201(b)(20). " The requirement of good faith includes observance of reasonable commercial standards of fair dealing in the trade if the party is a merchant." (Citation omitted; internal quotation marks omitted.) Marcus Dairy, Inc. v. Rollin Dairy Corp., United States District Court, Docket No. 3:05cv589 (PCD), (D.Conn. September 24, 2008) (citing General Statutes § 42a-2-305, Comment 3).
Count V of the second amended complaint and the second amended counterclaim also alleges violations of General Statutes § 42a-1-203, which relates to the distinction between a lease and a security interest, and § 42a-2-103, pertaining to the effect of sealed instruments. The KennyNick/Faugno parties have not referenced these sections in their class certification argument, and the court will not address them here.
Determining the class members' bad faith claims against Standard Petroleum will depend on the common questions of whether Standard Petroleum charged its customers for federal gasoline tax at an incorrect rate because it did not apply the VEETC, and whether Standard Petroleum improperly charged the state gross receipts tax on gasoline as delivered. The court finds that common issues of fact and law predominate in establishing the elements of the claim set forth in Count V of the second amended complaint and the second amended counterclaim for violation of the good faith requirement under General Statutes § 42a-2-305.
6
In Count VI of the second amended complaint and the second amended counterclaim, the KennyNick/Faugno parties set forth a claim against Standard Petroleum for misrepresentation. " Traditionally, an action for negligent misrepresentation requires the plaintiff to establish (1) that the defendant made a misrepresentation of fact, (2) that the defendant knew or should have known was false, and (3) that the plaintiff reasonably relied on the misrepresentation, and (4) suffered pecuniary harm as a result." (Citation omitted; internal quotation marks omitted.) Coppola Construction Co., Inc. v. Hoffman Enterprises Ltd. Partnership, 309 Conn. 342, 351-52, 71 A.3d 480 (2013). With respect to the element of reasonable reliance, the Second Circuit has held in the RICO context that " fraud claims based on uniform misrepresentations made to all members of the class . . . are appropriate subjects for class certification because the standardized misrepresentations may be established by generalized proof. Where there are material variations in the nature of the misrepresentations made to each member of the proposed class, however, class certification is improper because plaintiffs will need to submit proof of the statements made to each plaintiff, the nature of the varying material misrepresentations, and the reliance of each plaintiff upon those misrepresentations in order to sustain their claims." (Citation omitted.) Moore v. Paine Webber, Inc., 306 F.3d 1247, 1253 (2d Cir. 2002).
As the court has found with respect to the other causes of action, once the class members have established that they purchased gasoline from Standard Petroleum during the relevant time period, the elements of their misrepresentation claim will be substantially determined by the common questions relating to the federal gasoline tax and the state gross receipts tax--i.e., whether Standard Petroleum charged the federal gasoline tax at an incorrect rate because it did not apply the VEETC, and whether Standard Petroleum improperly charged the state gross receipts tax on gasoline as delivered. In view of the evidence demonstrating Standard Petroleum's uniform conduct with respect to charging federal gasoline tax and state gross receipts tax to members of the proposed class, establishing the class members' reliance is unlikely to require substantial individualized proof. " [T]he presence of individual questions as to the reliance of each [plaintiff] does not mean that the common questions of law and fact do not predominate." (Citation omitted; internal quotation marks omitted.) In re Prudential Insurance Co. America Sales Practice Litigation Agent Actions, 148 F.3d 283, 315 (3d Cir. 1998), cert. denied sub nom. Krell v. Prudential Insurance Co. of America, 525 U.S. 1114, 119 S.Ct. 890, 142 L.Ed.2d 789 (1999) and cert. denied sub nom. Johnson v. Prudential Insurance Co. of America, 525 U.S. 1114, 119 S.Ct. 890, 142 L.Ed.2d 789 (1999). Where " evidence of materially uniform misrepresentations is sufficient to demonstrate the nature of the misrepresentation[, ] an individual plaintiff's receipt of and reliance upon the misrepresentation may then be simpler matters to determine." Moore v. Paine Webber, Inc., supra, 306 F.3d at 1255. Accordingly, the court finds that common issues of fact and law predominate in establishing the elements of the claim for misrepresentation set forth in Count VI of the second amended complaint and the second amended counterclaim.
B
Under Practice Book § 9-8, the KennyNick/Faugno parties must also demonstrate that that " a class action is superior to other available methods for the fair and efficient adjudication of the controversy." Practice Book § 9-8. The superiority requirement acknowledges that " in certain situations, class action suits are superior to individual lawsuits . . . Class action suits: (1) promote judicial economy and efficiency; (2) protect defendants from inconsistent obligations; (3) protect the interests of absentee parties; and (4) provide access to judicial relief for small claimants." (Citations omitted.) Grimes v. Housing Authority, 242 Conn. 236, 244, 698 A.2d 302 (1997). " Once predominance is determined, considerations of superiority and manageability should fall into their logical place . . . If the predominance criterion is satisfied, courts generally will find that the class action is a superior mechanism even if it presents management difficulties " (Citations omitted; internal quotation marks omitted.) Collins v. Anthem Health Plans, Inc., supra, 275 Conn. at 347. The court finds that determining the claims of the KennyNick/Faugno parties and the other members of the proposed class in a class action is superior to individual lawsuits by class members against Standard Petroleum because it will promote judicial economy and avoid inconsistent judgments.
C
Practice Book § 9-8 provides that, in reaching its findings concerning predominance and superiority, the court should also consider the following: " (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; [and] (D) the difficulties likely to be encountered in the management of a class action." Practice Book 9-8. See also Collins I, 266 Conn. at 48-49. Each of these factors supports the court's conclusions, as set forth above, that common questions of law or fact predominate over questions affecting only individual class members, and that a class action is superior to other methods for adjudicating these consolidated actions.
With respect to the interest of potential class members in controlling the prosecution of separate actions against Standard Petroleum individually, none of the parties offered any evidence to indicate that any potential class member, other than the KennyNick/Faugno parties, has shown such interest in pursuing its own litigation against Standard Petroleum. Apart from these consolidated actions and the suit filed by Standard Petroleum against Michael J. Fox, the KennyNick/Faugno parties' expert, the parties have not brought any other suit concerning these issues to the court's attention. As to the desirability of concentrating the litigation of these claims in the particular forum, the court notes that these cases were consolidated in the Judicial District of Stamford/Norwalk in May 2014 on the motions of the KennyNick/Faugno parties (#103.86 KennyNick action) (#112.86 Faugno action) and referred to the Complex Litigation Docket upon Standard Petroleum's application, without objection by the KennyNick/Faugno parties. Lastly, regarding difficulties likely to be encountered in the management of a class action, Practice Book § 9-9 provides detailed procedures for managing a class action that will be applicable here.
Standard Petroleum sued Mr. Fox in the Judicial District of Fairfield in 2009 in the matter styled Standard Petroleum Company, Inc. v. Michael Fox, Docket No. FBT-CV-09-4028045-S.
IV
Accordingly, for the reasons set forth above, the KennyNick/Faugno parties' renewed motions for class certification in the KennyNick action (#163.00) and in the Faugno action (#174.00) are GRANTED as to all counts of the second amended complaint (#171.00 KennyNick action) and the second amended counterclaim (#182.00 Faugno action).
It is hereby ORDERED that a class be certified consisting of all entities or persons who: (i) purchased gasoline from Standard Petroleum during the period September 27, 2004 to date; (ii) were charged federal gasoline tax at a rate of 18.4 cents per gallon on such gasoline purchases; (iii) did not receive the federal volumetric ethanol excise tax credit, while it was in effect, on such gasoline purchases; and (iv) were charged state gross receipts tax on such gasoline purchases based on the price of gasoline, as delivered.
The plaintiffs are approved as class representatives for this class, and their present attorneys are approved as class counsel.
Pursuant to Practice Book § 9-9(a)(2)(B), the class representatives shall provide individual notice of this order by certified or registered mail to the eighty-one class members already identified and to those additional class members who can be identified through reasonable effort.
Notice shall also be provided to other potential class members by publication in trade journals or newspapers circulated within the State of Connecticut, and by such other means that are most practicable under the circumstances.
The notice must concisely and clearly state in plain, easily understood language the following: (i) the nature of the action; (ii) the definition of the class certified; (iii) the class claims, issues or defenses; (iv) that a class member may enter an appearance through counsel if the member so desires; (v) that the court will exclude from the class any member who requests exclusion, stating when and how members may elect to be excluded; and (vi) the binding effect of a class judgment on class members.