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It’s been nearly seven months since a federal jury in Miami awarded $500 million to thousands of gas station owners around the country in their breach-of-contract class action lawsuit against ExxonMobil Corp. But it could be years before the plaintiffs ever see a penny. That’s because Judge Alan Gold of the U.S. District Court for the Southern District of Florida, who presided over the trial, now says he can’t enter a final judgment giving class members the money the jury awarded them. Instead, Gold is in the process of creating a set of procedures, such as requiring each station owner to file a separate application with supporting documentation, before they can claim any money. The plaintiffs call this procedure excessively cumbersome and say it will prevent the case from being resolved in a single, final judgment. Late last month, both sides petitioned the 11th U.S. Circuit Court of Appeals in Miami to review Gold’s ruling. The plaintiffs want the appellate court to order Gold to enter a single final judgment and divvy up the money according to what they call a “simple” mathematical formula. But ExxonMobil insists that the judge require the individual plaintiffs to prove their claims, each of which the oil company would be permitted to review. The plaintiffs protest that such a process would take years. ExxonMobil’s attorney also is asking the appellate court to rule on some basic issues the plaintiffs say already have been resolved at the trial court level, such as whether the oil giant had a contractual obligation to give the station owners the discount at the heart of the legal dispute. And ExxonMobil is asking that any money left unclaimed from the $500 million judgment be returned to the company. At press time, the 11th Circuit had not yet decided whether to hear the appeal. DISPUTE OVER DISCOUNTS The verdict, handed down in February, followed a 10-year legal battle between Exxon and as many as 10,000 gas station owners in 34 states and the District of Columbia. The dispute arose from Exxon’s creation of a discount program in which cash customers paid a few cents per gallon less than those who paid with credit cards. The discount-for-cash program was launched as a response to competition from rivals charging lower prices. In 1982, Exxon, which merged with Mobil in 1999 to form the largest publicly traded oil company, promised the dealers that they would receive a discount in the wholesale price they paid for fuel in return for participating in the program. At first, Exxon gave the station owners the discount. But the station owners alleged that the company later raised the wholesale price, and then lied to the dealers by telling them that the price break was built into the rate. The station owners got suspicious and sued, alleging that Exxon violated the deal. The oil company insisted that it had never stopped giving the station owners the discount. The first trial, in 1999, ended in a deadlocked jury. The second trial this year, lasting nearly three weeks, ended in a victory for the station owners. The jury concluded that Exxon failed to meet its good faith and contractual obligation to reduce its gas prices by roughly 1.3 cent per gallon to offset the 3 percent credit card processing fee. Based on the 40 billion gallons of gas sold during the time the program was in place, it awarded $500 million to the dealers. With interest, that figure could reach $1 billion. In his appeal to the 11th Circuit, Exxon’s attorney supported Judge Gold’s decision not to enter an aggregate damages award. Larry Stewart, a partner at Stewart Tilghman Fox & Bianchi in Miami, argued in his brief that “the court first must determine whether each class member is entitled to any judgment … before it can consider directing entry of an aggregate damage award in favor of the entire class.” Roy Oppenheim, a partner at Oppenheim Pilelsky in Weston, Fla., who has handled a number of class action lawsuits, says it’s not unusual for judges to set up a process under which each member of the plaintiff class provides information in an application and calculates how much he or she is owed. That’s often necessary, because each plaintiff’s situation is somewhat unique. Then the judge reviews and certifies each claim. In an interview, Stewart said that although the verdict resolved questions common to those in the class, “there are still some individual issues that have to be decided.” WHETHER TO DISMISS SMALLER CLAIMS His petition to the appellate court asks the panel to decide whether the trial court has subject matter jurisdiction over the amount of the claims. For a case to be heard in federal court, the claims involved have to be more than $50,000. ExxonMobil argues the federal courts lack jurisdiction over any claims below that threshold, and that those should be dismissed. The question becomes what happens to those smaller claims. The plaintiffs, however, contend that only a small percentage of the claimants in the case would receive less than the $50,000. Second, ExxonMobil also wants the appellate panel to rule on whether it had a legal obligation to the dealers to provide them with the discount. It argues that this is a question of law, not fact. “This was a marketing program and the issue has always been whether a marketing program constitutes a legal obligation that will support a lawsuit,” Stewart argues. Third, the oil company raises the question of whether the jury verdict is consistent with the theory of the case used by the plaintiffs. “They had a theory, [but] the jury found [Exxon] guilty on a different theory,” Stewart contends. “The court will have to resolve whether that means they lost the case.” If the appellate court grants the petition, Stewart says there are a number of other issues ExxonMobil will ask the appeals panel to consider, such as whether the statute of limitations had expired. DELAYING TACTICS? Eugene Stearns, a partner at Stearns Weaver Miller Weissler Alhadeff & Sitterson in Miami who represents the plaintiffs, calls ExxonMobil’s arguments a delaying tactic. In an interview, he says that by law, all Gold has to do in entering a final judgment is take the number of claims, multiply it by the agreed-upon discount per gallon of gas sold by the station owners, and come up with the amount that each plaintiff is owed. Stearns says the other issues raised by ExxonMobil are factual issues that already have been resolved by the jury. “The jury found against [ExxonMobil] on everything,” he says. “The suggestion that the jury found for them is silly.” Stearns also disagrees strongly with ExxonMobil’s argument that the company should be allowed to keep whatever money is left unclaimed from the judgment. The company contends that if it is expected to pay out money for those who don’t assert claims, that is equivalent to punitive damages. “It’s called forfeited or abandoned property,” Stearns says. “Exxon should not become the beneficiary of the abandoned property. The money should go to the state. You don’t get to be the beneficiary of stolen money just because people don’t show up to claim it.”

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