Case No. RF348-00001
September 2, 1998
DECISION AND ORDER
OF THE DEPARTMENT OF ENERGY
Application for Refund
Name of Petitioner: Oasis Petroleum Corporation/Kash n' Karry Food Stores, Inc.
Date of Filing: March 3, 1993
Case Number: RF348-1
This Decision and Order considers an Application for Refund submitted by Kash n' Karry Food Stores, Inc. (KNK) in the Oasis Petroleum Corporation (Oasis) special refund proceeding. For the reasons discussed below, we have determined that KNK should be granted a refund of $394,724, plus accrued interest.
I. Background
A. The Oasis Refund Proceeding
In 1986 and 1988, the Economic Regulatory Administration (ERA) issued Proposed Remedial Orders (PROs) to Oasis. The first PRO issued by the ERA alleged that Oasis had resold crude oil at a price in excess of its permissible average markup. In the second PRO (the "Diversion PRO"), the ERA alleged that Oasis had sold allocated gasoline to parties without allocation rights, and thereby diverted gasoline in violation of federal allocation regulations. On November 29, 1989, the DOE and Oasis entered into a settlement agreement, pursuant to which the ERA agreed to seek to withdraw both of the PROs issued to Oasis, and Oasis has remitted $1,836,276.57 to the DOE (the settlement agreement fund).
On July 15, 1992, the OHA issued a Decision and Order concerning the settlement agreement fund. Oasis Petroleum Corporation, 22 DOE ¶ 85,138 (1992) (the Implementation Order).(1) The Implementation Order divided the settlement agreement fund into two pools: a crude oil pool ($283,589.56) and a refined product pool ($1,488,845.21).
With respect to the refined product pool, the Implementation Order provides for a two-stage refund proceeding. The first stage consists of refunding portions of the funds to those injured as a result of Oasis' alleged allocation violations. As stated above, the ERA alleged that Oasis diverted gasoline in violation of federal allocation regulations by selling allocated gasoline to parties without allocation rights. In Lucky Stores, Inc., 14 DOE ¶ 82,505 (1986), the OHA found that during the period August 3, 1979 through January 27, 1981, Oasis had an affirmative duty to supply gasoline to wholesale purchasers who had been supplied by Research Fuels, Inc. (RFI) during the period November 1, 1977 to October 31, 1978, pursuant to an August 3, 1979 court order issued by the United States District Court for the Northern District of Texas.
As we stated in the Implementation Order, applications for refund in the Oasis refund proceeding will be evaluated with reference to the standards set forth in Subpart V implementation cases such as Office of Special Counsel, 10 DOE ¶ 85,048 at 88,220 (1982), and refund application cases such as Mobil Oil Corp./Reynolds Industries, Inc., 17 DOE ¶ 85,608 (1988); Marathon Petroleum Co./Research Fuels, Inc., 19 DOE ¶ 85,575 (1989), aff'd sub nom., Research Fuels, Inc. v. Dep't of Energy, No. CA3-89-2983G, slip op. (N.D. Tex. Oct. 3, 1991), aff'd, 977 F.2d 601 (Temp. Emer. Ct. App. 1992) (Marathon/RFI). In this proceeding, an allocation claimant is required to demonstrate that it purchased motor gasoline from RFI during the period November 1, 1977 to October 31, 1978, and the likelihood that Oasis failed to furnish gasoline that it was obliged to supply to the claimant from August 3, 1979 through January 27, 1981. In addition, the claimant should provide evidence that it had contemporaneously notified the DOE or otherwise sought redress from the alleged allocation violation. Finally, the claimant must establish that it was injured and document the extent of the injury. Implementation Order, 22 DOE at 88,397.
B. KNK's Application for Refund
KNK filed its Application for Refund in this proceeding as a successor in interest to Lucky Stores, Inc. (Lucky). During the period of price and allocation controls, Lucky was a retailer of motor gasoline through 34 outlets located in and around Tampa and the west coast of Florida. Lucky was one of the wholesale purchasers to which Oasis was required by court order to supply gasoline during the period August 3, 1979 through January 27, 1981. The applicant seeks a refund of approximately $12.3 million, based on the claimed volume of product denied Lucky by Oasis multiplied by the per gallon profit allegedly received by Oasis on sales of diverted gasoline.
In a 1988 sales agreement, Lucky sold the "properties, assets, operations and businesses" of its Florida retail outlets, including "all warranties and claims and causes of action against third parties (including, without limitation, the claim against Oasis Petroleum)" to LSI Acquisition Corp., which soon thereafter changed its name to Kash n' Karry Food Stores, Inc. See Purchase Agreement between Lucky Stores, Inc. and LSI Acquisition Corp. (August 11, 1988); Certificate of Amendment of Certificate of Incorporation of LSI Acquisition Corp. (August 29, 1988). In previous Subpart V refund cases, we have found that similar language in a sales contract transfers to the purchaser the seller's right to a refund. See, e.g., Murphy Oil Corp./Marine Fueling Division, 21 DOE ¶ 85,239 (1991) (right transferred by agreement transferring "any and all claims, rights and choses in action"); see also Shell Oil Co./Genetin & Waltzer Shell, 21 DOE ¶ 85,278 (1991) (right transferred by agreement transferring "all right and credits of every kind and nature . . . and all other property and assets"). Texaco Inc./Coker's Pedigreed Seed Company, 21 DOE ¶ 85,418 (1991) (right transferred by agreement transferring unknown and unenumerated assets and claims). Accordingly, we conclude that Lucky's right to a refund in this proceeding has been transferred to the applicant, KNK.
C. The Proposed Decision and Order
On September 23, 1994, the DOE issued a Proposed Decision and Order (PD&O) which tentatively determined that KNKs refund application should be denied. The PD&O is incorporated herein by reference and is attached as Appendix E to this Decision and Order. We found in the PD&O that, during each month of the relevant period, Lucky either (1) received the full allocation of gasoline to which it was entitled from Oasis, (2) was able to secure sufficient product to fully replace any shortfall during these months, or, (3) during months in which it experienced unmitigated shortfalls, did not purchase its full allocation entitlement from its other base period suppliers, an indication that Lucky made a discretionary decision to not purchase its full base period allocation from Oasis during these months. We therefore concluded that the applicant had not demonstrated that Lucky was injured due to Oasis failure to supply gasoline. We also rejected the applicants claim for a refund based on allegations that Oasis diverted a total of 208,175,216 gallons of gasoline away from purchasers with allocation rights and that Lucky would have been entitled to purchase a share of this gasoline in addition to Lucky's base period allocations.
On January 10, 1995, KNK submitted a Statement of Objections to the Proposed Decision and Order. Applicants Statement of Objections (January 10, 1995) [hereinafter Objections]. In response to further inquiries, the applicant submitted additional information regarding prior private litigation between the applicant and Oasis. Letter from Jack Caolo, Attorney at Law, to Thomas O. Mann, Deputy Director, OHA (July 7, 1996); Letter from Jack Caolo, Attorney at Law, to Thomas O. Mann, Deputy Director, OHA (July 28, 1995). In its Objections, which we address in detail in our analysis below, the applicant disputes our conclusion in the PD&O that Lucky was not injured by Oasis failure to supply Lucky with its base period allocations, and reasserts its claim to an additional refund based on a share of surplus gasoline allegedly diverted by Oasis.
II. Analysis
A. References in this Decision to Prior Decisions and Proposed Remedial Orders
Before addressing the substance of KNK's claim, we note that the applicant has attempted to incorporate by reference into its application a broad range of documents not included with its submission. Application at 11-12. First, the application states that it incorporates by reference materials previously submitted by Lucky in a Petition for Special Redress to this office, OHA Case No. HEG-0031. The applicant resubmitted with its application several of the appendices originally submitted with Lucky's Petition for Special Redress. For purposes of administrative efficiency, we have agreed to allow the applicant to incorporate by reference the other appendices to Lucky's submission, which are in the possession of the OHA. See Memorandum of telephone conversation between Jack Caolo, Caolo, Meyer & Jones, and Steven Goering, OHA (March 16, 1993).
The applicant also attempts to incorporate by reference the decisions of the OHA in Oasis Petroleum Corporation, 5 DOE ¶ 82,559 (1980) and Lucky Stores, Inc., 14 DOE ¶ 82,505 (1986), "the evidence and records of those proceedings[,]" as well as "all DOE records of enforcement investigations, subpoenas, and proceedings concerning Oasis." A refund applicant must set forth with reasonable specificity the evidence supporting its refund claim. This may be done by reference to specific documents submitted with its application, or by bringing to the attention of the OHA prior relevant determinations of the agency. However, we will not accept a general incorporation of broad categories of documents in an application for refund.
Thus, we stated in the PD&O that our determinations are based on the materials submitted by the applicant and the appendices incorporated by reference as discussed above, and that we have also referred to the PROs issued by the ERA to Oasis and to the prior decisions of the OHA that are relevant to the present case.
In its Objections, the applicant contends that prior decisions of the OHA in the Subpart V refund proceedings do not constitute precedential authority, and each decision is made based on the particular circumstances involved and the evidence submitted. Objections at 10. The applicant objects to any reference to prior DOE decisions for precedent as being contrary to DOEs rules. First, we note that the applicant does not cite any particular rules that would bar our reference to prior decisions. Indeed, KNK refers to at least six prior OHA decisions in support of its Objections, Objections at pp. 4, 5, 16, 17, and, as we note above, attempted to incorporate by reference two such decisions into its original application. Second, we agree with the applicant that each refund decision issued by the OHA is made based on the particular circumstances involved and the evidence submitted. However, in considering any individual refund, it is necessary and appropriate for this adjudicative office to turn to our own case law and that of the federal courts to assist us in fairly and consistently implementing our mandate as set forth in the Petroleum Overcharge Distribution and Restitution Act of 1986, 15 U.S.C. §§ 4501-07 (PODRA), which governs the Subpart V refund process.
KNK also specifically objects to any reference to the PROs [issued to Oasis] because they were not final decisions of the agency. They were withdrawn in the consent order, and they are completely null and void. . . . [T]he [Diversion] PRO was erroneous, as [KNK] would show in response to any specific attempt to use those documents. Objections at 10. We disagree with the applicants contention that we may not refer to PROs in this decision. We stated in the PD&O that we have referred to the PROs issued to Oasis in response to KNKs attempt to incorporate by reference into its application "all DOE records of enforcement investigations, subpoenas, and proceedings concerning Oasis." Other than by way of general background, our only direct reference in the PD&O, and in this decision, to either of the PROs concerns the volume of gasoline sold by Oasis as determined by the ERA in connection with the Diversion PRO. Though the PROs issued to Oasis were withdrawn and we are obviously not bound by the factual findings of the ERA, we can certainly take into account the ERAs findings in evaluating KNKs claim, while at the same time considering any specific arguments by the applicant that any of those findings are erroneous.
B. Section 210 Actions
In the PD&O, we noted that KNK referred in its application to two private Section 210 actions brought by Lucky against Oasis. The Implementation Order requires that an applicant who has been a party to a Section 210 action provide an explanation of the case and copies of documents relevant to those actions. KNK has provided copies of a February 13, 1990 settlement agreement between Lucky and the Chapter 11 Trustee of the Oasis bankruptcy estate, and a Notice of Settlement and Dismissal filed May 31, 1990 in the court having jurisdiction over the two Section 210 actions. The Notice of Settlement and Dismissal states in pertinent part:
[A]ll matters in controversy among the plaintiff and the defendants have been fully settled, compromised and agreed; which compromise has been approved by the United States Bankruptcy Court for the Central District of California in that certain bankruptcy proceeding styled In re Oasis Petroleum Corporation, Case No. LA 86- 01225-AG, by Order entered therein on March 26, 1990. . . . This settlement is not intended to have any effect on any claims asserted by Lucky in any administrative proceedings pending before the Department of Energy and Lucky expressly reserves all such claims.
WHEREFORE, the parties request that this matter [the two Section 210 actions] be dismissed with prejudice.
Notice of Settlement and Dismissal, Lucky Stores, Inc. v. Gill, Nos. 81-383-CIV-T-10, 83-986-CIV- T-10 (Fla. Cir. Ct. May 31, 1990).
In Hydrocarbon Trading & Transp. Co., Inc. v. Department of Energy, No. 93-841, (D.D.C. May 9, 1995), the U.S. District Court for the District of Columbia upheld a determination by the OHA denying an application in the Exxon refund proceeding, where the applicant had previously settled a section 210 action with Exxon. The court stated that a final judgment, whether arrived at by way of a settlement agreement or an adjudication on the merits, does extinguish a partys claim to remedies pertaining to ?all or any part of the transaction, or series of connected transactions, out of which the action arose. Hydrocarbon Trading & Transp. Co., Inc. v. Department of Energy, No. 93-841, (D.D.C. May 9, 1995) at 11 (quoting Restatement (Second) of Judgments § 24 (1982)).
However, we note that the Restatement of Judgments, upon which the Hydrocarbon court relied, provides an exception to the bar against any further claim to damages where [t]he parties have agreed in terms or in effect that the plaintiff may split his claim, . . . Restatement (Second) of Judgments § 26 (1982). As expressly stated in the Notice of Settlement and Dismissal of Luckys Section 210 actions and in the text of the agreement signed by the parties, the parties did not intend for their settlement to have preclusive effect on any Subpart V claim brought by the applicant. See Letter from Steven E. Smith; Danning, Gill, Gould, Diamond & Spector; to Robert S. Bolt; Barnett, Bolt & Kirkwood (February 13, 1990) (This settlement is not intended to have any effect on any claims asserted by Lucky in any administrative proceedings pending before the Department of Energy and Lucky expressly reserves all such claims.). We therefore believe that Luckys settlement with the Oasis bankruptcy estate should not bar our consideration of the applicants claim in this Subpart V refund proceeding. See C. Wright & A. Miller, Federal Practice and Procedure § 4415 (1981) (An express agreement between the parties that an action on one part of the claim will not preclude a second action on another part of the same claim should be honored, . . . Important private interests may underlie such agreements. . . . [I]t is possible that parties to some forms of contractual arrangements may be able to foresee special claim preclusion problems and provide against them. The public interest is far better served by honoring such agreements than by short- sighted insistence on ?efficient litigation.)
C. KNK's Claim for the Period March 1, 1979 to August 3, 1979
As stated above, the OHA has previously found that during the period August 3, 1979 through January 27, 1981, Oasis had an affirmative duty to supply gasoline to wholesale purchasers, including Lucky, who had been supplied by RFI during the period November 1, 1977 to October 31, 1978. In its Application, KNK claims that Oasis denied Lucky gasoline that it was obligated to supply Lucky from March 1, 1979 to August 3, 1979.
In order to be entitled to receive a refund for this period, KNK must meet the standards for an allocation refund. Thus, KNK must make a reasonable demonstration that (i) Oasis had a supply obligation to Lucky or to RFI, Lucky's base period supplier; (ii) Oasis breached that obligation, causing Lucky to receive less than its base period allocation; and (iii) the shortfall caused injury to Lucky.
1. Oasis Supply Obligation
In the Proposed Decision and Order, we recognized that during the March 1, 1979 to August 3, 1979 period Oasis attempted to gain control over RFIs allocations from Marathon Petroleum Company that RFI was in turn obligated to supply to its wholesale customers, including Lucky. Nonetheless, we reiterated our previous finding that any control of these supplies by Oasis did not impose a regulatory supply obligation on Oasis vis-a-vis Lucky and the other wholesale customers. PD&O at 5; Lucky Stores, 14 DOE at 85,051. In its Objections, KNK does not challenge this finding, but asserts that
the most logical and practical remedy at this time would be for the DOE to adjust the regulations rather than applying them in a manner which leaves KNK without a remedy. The adjustment should retroactively create an Oasis duty to supply Lucky during the period when Oasis controlled the upstream supplies. The DOE clearly has the power to do so.
Objections at 12. In support of its position that we can and should retroactively adjust the regulations, KNK cites the decisions of the Temporary Emergency Court of Appeals in Commonwealth Oil Ref. Co., Inc. v. United States, 953 F.2d 653 (Temp. Emer. Ct. App. 1991) and Exxon Corp. v. Department of Energy (Temp. Emer. Ct. App. 1986). Each of these decisions reviews the DOEs granting of exception relief under its statutory authority to make adjustments to certain rules, regulations, or orders. 42 U.S.C. 7194. However, unlike in the cases cited by the applicant, the present proceeding is being conducted under the authority of the Petroleum Overcharge Distribution and Restitution Act of 1986, 15 U.S.C. §§ 4501-07 (PODRA), which authorizes the OHA to identify parties injured by any actual or alleged violation of the petroleum pricing and allocation regulations, to establish the amount of any injury incurred, and to make restitution to those parties. 15 U.S.C. § 4502(b). Thus, it would be beyond the scope of this proceeding to make the retroactive adjustments to the regulations sought by the applicant.
2. Luckys Receipt of Gasoline
Even if we were to find that Oasis had a regulatory obligation to supply Lucky during the March 1, 1979, to August 3, 1979 period, or if we were to retroactively create such an obligation, the applicant has not demonstrated any injury that would warrant granting a refund for this period. As we explain below, agency assignment orders during the March 1, 1979, to August 3, 1979 period imposed upon Marathon the obligation to supply Lucky with its base period allocation from RFI. It is undisputed that Lucky received that full allocation, and as a result was not injured by any failure of Oasis to supply motor gasoline to Lucky.
From the beginning of this period, RFI asserted that it was entitled to supply from Marathon in order to meet its obligations to Lucky and other wholesale customers under amended DOE allocation regulations. Oasis, on the other hand, argued that it was entitled to this supply, based on a Substitute Supplier Agreement entered into by Oasis, RFI, and Marathon in 1978. See infra note 1. Oasis further contended that RFI's sales to wholesale purchasers during the base period were illegal diversions from RFI's retail outlets, and that therefore any entitlement to supplies based on these sales belonged not to the wholesale purchasers but to the retail outlets, which Oasis had since purchased from RFI. On March 21, 1979, Oasis filed suit in a Texas state court, seeking an injunction to enforce its contractual rights under the Substitute Supplier Agreement. Oasis Petro Energy Corp. v. Research Fuels, Inc., et al. Case No. 17-54365-79 (Dist. Ct. Tarrant County, Tex., filed March 21, 1979). Although the court refused to enter a preliminary injunction against RFI, it did issue a temporary restraining order on March 21 barring the firm from interfering with Oasis' claimed contractual right to the disputed allocation.
Since Lucky was unable to obtain supplies from either Oasis or RFI, it filed an Application for Temporary Assignment of Suppliers with the DOE on March 14, 1979. On March 23, 1979, the ERA issued a Temporary Assignment Order (TAO) requiring Marathon to supply Lucky its March and April 1979 allocations. See Application at Appendix E-2 , Exhibit E-26.
On March 29, 1979, Oasis proposed to the DOE that Marathon sell to Oasis the balance of the supplies subject to the March 23 TAO, which Oasis would in turn sell to Lucky, and that this arrangement be "deemed in compliance with the requirements of the Temporary Assignment." See Application at Appendix E-2 , Exhibit E-27. Oasis noted that it was preparing to file a lawsuit in U.S. District Court seeking an order restraining further implementation of the TAO, and concluded that if the DOE would not agree to Oasis' proposal by the following day, Oasis would "have no option but to commence the litigation . . . ." Id. On March 30, 1979, the DOE informed Oasis that it would accept Oasis' proposal. See Application at Appendix E-2 , Exhibit E-27.
On April 12, 1979, Oasis and RFI settled the Texas state court litigation. The settlement agreement provided that Oasis would receive the entire allocation from Marathon which had been claimed by both Oasis and RFI. See Application at Appendix G-1, Exhibit G-8 at ¶ 1. Oasis agreed to sell to RFI, at Oasis' net cost, 3 million gallons of gasoline per month. Id. at ¶ 2. Oasis' sale of these volumes was premised on RFI's agreement that it would be responsible for satisfying those supply entitlements of Lucky and the other wholesale purchasers. Id. RFI and Oasis presented this agreement to the court, and it was made a part of a May 17, 1979 Order approving the settlement.
On May 21, 1979, Lucky, claiming that it had been cut off from its supply of gasoline through Oasis and RFI, and that as a result had been forced to close all of its retail outlets, applied to the ERA for a second assignment order. On May 24, 1979, ERA Region IV issued an assignment order requiring Marathon to supply Lucky directly with its May and June 1979 allocation. See Application at Appendix E-3, Exhibit E-50. Subsequently, on July 17, 1979, ERA Region IV issued a third assignment order requiring that Marathon continue to supply Lucky directly for the months of July, August and September 1979. Id. at Exhibit E-72.
Thus, at various times between March 21 and May 24, 1979, Oasis gained control of the supply allocable to Lucky. However, as we note above in reference to our decision in Lucky Stores, 14 DOE at 85,050-52, the fact that Oasis gained control over the disputed allocation entitlement did not, under the regulations, create an Oasis duty to supply Lucky and the other wholesale customers. See also Marathon/RFI, 19 DOE at 89,048; Marathon Petroleum Co./Lucky Stores, Inc. 22 DOE ¶ 85,057 (Marathon/Lucky Stores) at 88,156-57. Instead, the regulatory remedy for Lucky and the other customers was to request a new supplier from the agency. See 10 C.F.R. Part 205, Subpart C, 39 Fed. Reg. 35472 (October 1, 1974).
Lucky availed itself of the appropriate regulatory remedy when it obtained assignment orders requiring Marathon to supply it directly. In each instance, Lucky received the relief it sought. In its March 14, 1979 application for a temporary assignment order, Lucky requested that it be supplied by Marathon with 2,395,797 gallons for the months of March and April 1979. Application at Appendix E-2, Exhibit E-21. Lucky has submitted information, set forth in Appendix A to this Decision, that it received 2,410,550 gallons from Marathon and RFI in these two months pursuant to the ERA's first TAO.(2) Thus, though Oasis may have had a supply obligation to Lucky based on the modification of this TAO on March 30, 1979, Lucky received from Marathon and Oasis (through RFI as a result of the April 12, 1979 settlement agreement) an amount in excess of the volume specified in the March 23 TAO, which was all that Lucky was legally entitled to receive.
In its second application for an assignment order, filed on May 21, 1979, Lucky requested 3,206,653 gallons from Marathon for the months of May, June, and July 1979. Application at Appendix E-3, Exhibit E-46. As shown in Appendix A, Lucky actually purchased 3,224,334 gallons from Marathon pursuant to the second and third assignment orders issued by the ERA. Although Oasis' April 12 settlement agreement with RFI may have given Oasis control over the supply of Marathon gasoline allocable to the wholesale customers, we specifically found in Lucky Stores that without the approval of the DOE, the agreement could not have terminated any base period supply obligations which Marathon had to RFI or transferred those obligations to Oasis. Lucky Stores, 14 DOE at 85,043. Moreover, it is undisputed that the obligation to directly supply Lucky fell to Marathon upon the issuance of the second and third assignment orders, and that Lucky received its full allocation for the months of May, June, and July 1979 pursuant to those orders.
Thus, as we found in the PD&O, during the March-July 1979 period, Lucky was able to secure supplies in excess of its base period allocation. Lucky's purchases from RFI and supplies obtained pursuant to the assignment orders issued to Marathon equaled 5,718,306 gallons, exceeding its total base period allocation of 5,685,872 gallons for this period. We therefore find no basis for the applicant's claim of injury due to shortfalls from Lucky's base period allocation during the March- July 1979 period.
3. KNKs Arguments in Support of a Finding of Injury
In its Objections to the PD&O, in which we tentatively set forth the above findings, the applicant does not dispute our finding that Lucky was able, by virtue of the assignment orders discussed above, to obtain supplies of gasoline in excess the total of its base period allocations for the months at issue. KNK does assert that assignment orders do not modify or terminate a purchasers allocation rights[,] Objections at 14. However, it is not the purpose of this proceeding to adjudicate Luckys legal rights under the petroleum allocation regulations. Rather, this is an equitable proceeding in which our charge is to establish the amount of any injury incurred by Lucky, and to provide appropriate restitution. 15 U.S.C. § 4502(b). The applicant also contends that the fact that Lucky eventually received its full base period volumes does not mean that Lucky was not injured by the disruptions that forced it to close its stations, Objections at 14, but offers us no indication of the amount of injury it implies that Lucky sustained by the temporary closures, or any specific evidence to substantiate such an injury. In the absence of evidence to the contrary, it is reasonable to presume here that any injury sustained by Lucky in the form of lost profits from any temporary disruption of its supplies was fully mitigated by profits from the sale of the gasoline it ultimately obtained in these months.
KNK further argues that the DOE recognized Luckys supply disruptions and hardships numerous times, and it would be contradictory for the DOE to now issue a final order concluding that Lucky was not injured. Specifically, the applicant points to statements in DOEs pleadings responding to Oasis June 1979 lawsuit in the U.S. District Court for the Northern District of Texas, see supra note 2, and in a Proof of Claim submitted by the DOE in the Oasis bankruptcy proceeding, as well as to the decisions of this office in Oasis Petroleum Corporation, 5 DOE ¶ 82,559 (1980) and Lucky Stores, Inc., 14 DOE ¶ 82,505 (1986). Objections at 16.
First, the applicant recounts DOEs statements in pleadings that Lucky did not lose its regulatory allocation simply because of the upstream dispute between Oasis and RFI, nor because the DOE was unable to resolve that dispute and that the DOE had a duty to help Lucky obtain its allocation. Objections at 16. Second, the applicant characterizes our decision in Oasis as repeatedly reaffirm[ing] the DOEs view that Lucky was injured, though only one of the several passages to which the applicant refers comes remotely close to fitting this description. In that passage, we stated that the public interest would be best served by providing a detailed analysis which could expedite the resolution of this controversy and prevent further injury to the suppliers as well as to the customers who are entitled to receive an allocation of gasoline from Oasis and RFI. Oasis, 5 DOE at 85,243. Third, KNK asserts that we found in our Lucky Stores decision that RFIs wholesalers were likely injured by Oasis alleged diversions. Objections at 17. Finally, the applicant contends that, in a Proof of Claim submitted in the Oasis bankruptcy proceeding, the DOE stated that Oasis was obligated to supply [gasoline] to RFIs wholesalers from March 1, 1979, through July [sic] 27, 1981 . . . , and that the evidence indicated Oasis had denied supplies to RFIs wholesale customers and imposed excessive terms of sale on them to discourage them from purchasing their allocations. Objections at 17-18.(3)
However, none of the many statements cited by the applicant would contradict any finding in the present case as to Luckys injuries. Regarding the two statements that have the most relevance to this issue, the passage in our Oasis decision quoted above only implies that there had been injuries to suppliers and customers in general and says nothing about injury to Lucky in particular, and our reference in Lucky Stores to injury sustained by the wholesale purchasers must be read in the full context of our conclusion in that case, in which we stated the following: Lucky and similarly situated wholesale purchasers of RFI probably incurred injury as a result of Oasis diversion activities and therefore should be permitted to demonstrate their injuries and prove entitlement to a portion of the escrow money and any other monies that may be disgorged by Oasis. Lucky Stores, 14 DOE at 85,053 (emphasis added). Thus, far from concluding that Lucky had demonstrated its injuries and proven entitlement to a portion of monies disgorged by Oasis, the Lucky Stores decision only anticipated a proceeding in which Lucky would be permitted to do so. Accordingly, while the present proceeding offers the applicant the opportunity to prove its entitlement to a portion of the monies remitted by Oasis, the references cited by KNK cannot substitute for the demonstration of injury necessary to warrant a refund in this proceeding.
For the reasons stated above, we conclude that Oasis was under no regulatory obligation to supply Lucky during the March 1, 1979, to August 3, 1979 period, and that even if there were such an obligation, KNK has not demonstrated any unmitigated injury that would warrant granting a refund for this period. However, as we explain below, we do find that the applicant is entitled to a refund for the subsequent period, August 3, 1979 to January 27, 1981.
D. KNK's Claim Based on Lucky's Base Period Allocation for the Period August 3, 1979 to January 27, 1981
Attached at Appendix B is a schedule of Lucky's purchases from Oasis during the period August 1979 through January 1981. Also shown is Lucky's base period allocation from RFI for this period, based on its purchases from RFI during the months of November 1977 through October 1978. As noted above, Oasis' supply obligation to Lucky was based on Lucky's base period allocation from RFI.(4) The schedule shows that Luckys purchases from Oasis equaled or exceeded this base period amount during the months of September through December 1979, March 1980, and October 1980. In these months, Oasis met its supply obligations to Lucky, and thus Lucky could not have been injured by Oasis' alleged allocation violations. In its Objections, KNK does not contend that it is entitled to a refund based on a failure by Oasis to supply Lucky with its base period allocation for these months. See Objections at 19.(5)
During the remaining months of the period in question, Lucky undeniably purchased less that its full allocation from Oasis. If we assume that, but for Oasis alleged violations, Lucky would have purchased its full allocation, it would follow that all of Luckys shortfalls were the result of those violations. Such an assumption would be reasonable were it not for other evidence before us, specifically that relating to Luckys allocation and purchases from its base period suppliers other than Oasis, the data for which are shown at Appendix C. As the data there indicate, in most months during the relevant period, Lucky purchased less than its full allocation from these suppliers. In the PD&O we stated that, without evidence that these suppliers failed to make gasoline available to Lucky, we could reasonably presume that Lucky could have purchased its full allocation from these suppliers in these months, but declined to do so. From this presumption, we observed that Lucky's failure to purchase its full base period allocations from its other base period suppliers suggests that Lucky made a discretionary decision to not purchase its full base period allocation from Oasis. PD&O at 9; see Petrolane-Lomita Gasoline Company/Int'l Drilling and Energy Corp., 19 DOE ¶ 85,004 at 88,012 (1989) (failure to purchase from other suppliers mitigates against a finding that product was denied).
In its Objections, the applicant argues that
it would be incorrect to conclude that Lucky made a discretionary decision not to purchase its full base period allocation from Oasis because Lucky did not purchase its full base period allocation from some other base period suppliers. It is clear from the evidence that the price of gasoline was rising throughout the relevant period, and it is also clear that Oasis was imposing excessive prices and terms on Lucky during the relevant period, causing it economic injury and gradually diminishing its ability to purchase additional supplies over time. Moreover, the fact that Lucky purchased substantial volumes from non-base period suppliers during this period, while not receiving all of its base period volumes, makes a stronger case that Lucky wanted more gasoline than that it had all the gasoline it wanted.
Objections at 20. In support of its position, the applicant offers a certification from James A. Toopes, an employee of Lucky from 1976 to 1989, who during the relevant period served as Controller (December 1976 to March 1979) and Vice President-Controller (March 1979 to July 1984) of the company. In the certification, Mr. Toopes, who is now employed by a retail grocery business in South Carolina, states, My responsibilities with Lucky required me to be informed and involved in Luckys retail gasoline operation and its financial performance. These responsibilities directly involved me in Luckys gasoline supply problems with [Oasis, Marathon, RFI, and the DOE] from 1979 through January 1981, . . . Certification of James A. Toopes at 1-2 (March 12, 1993). Mr. Toopes asserts that, beginning in March 1979,
Oasis immediately refused to offer Lucky its full allocation. Oasis later offered Lucky part of the allocation, but Oasis also imposed an excessive price and more stringent credit terms than RFI had required on that gasoline. . . .
- . . Although Luckys gasoline operation had been profitable previously, it began losing substantial amounts of money and market share in March 1979 due principally to these supply problems with Oasis. . . .
- . . Lucky was severely injured from March 1979 through January 1981 by Oasiss denial of supplies and stringent price and credit terms. With specific reference to 1980 and January 1981, it would be unwarranted and incorrect to infer that Lucky was not injured by Oasis, or that Lucky declined supplies from Oasis or other suppliers, based solely on the volumes of gasoline Lucky purchased from other suppliers in that period. At that time, Lucky was attempting to purchase and resell at a profit as much gasoline as possible.
I certify under penalty of perjury that the foregoing in true and correct.
Id. at 2-3.
Mr. Toopes certification is valuable in that it offers a first-hand and apparently disinterested (since he is no longer employed by the applicant) account of Luckys situation during the relevant period. It fails, however, to answer one important question. Why, assuming that Lucky was, in fact, attempting to purchase and resell at a profit as much gasoline as possible, was Lucky not purchasing the full allocation available to it from its other base period suppliers? There is no assertion in Mr. Toopes certification, nor any evidence in the record, that these other base period suppliers were denying gasoline to Lucky in violation of the allocation regulations. And we cannot agree with the applicant that Luckys pattern of purchases from its other base period suppliers reflects a gradually diminishing . . . ability to purchase additional supplies over time. Objections at 20. A review of the data submitted by the Applicant indicates that Luckys level of purchases from these suppliers did not gradually trend downward over time, but fluctuated in inverse relation to the amount of product purchased from non-base period suppliers. See PD&O at Appendices B and C. Rather than indicating an inability to purchase product from its base period suppliers, this pattern of purchases more likely reflects Luckys discretionary decision to purchase instead from non-base period suppliers. Thus, based on Luckys purchases from its other, presumably non- violating, base period suppliers, we simply cannot assume that Lucky would have purchased it full allocation from Oasis in every relevant month even if Oasis had not violated the regulations. Instead, we must look to Luckys level of purchases from its other base period suppliers in each of the relevant months, and from that information draw reasonable inferences as to the amount of product Lucky would have purchased from Oasis in the absence of allocation violations.
In its application, Lucky submitted data for certain months indicating the portion of it base period supply that was available after accounting for the allocation fractions of its suppliers.(6) Application at Appendix A, pp. 11-13. After the application of allocation fractions, the data at Appendix C indicate that Lucky purchased more than its base period allocation in August 1979 (104%), February 1980 (139%), and April 1980 (117%). It is therefore reasonable to conclude that, in these months, Lucky would have purchased its full allocation from Oasis. However, in January 1980, because Lucky purchased only 65% of its base period allocation after accounting for allocation fractions, we conclude that Lucky made a discretionary decision not to purchase its full base period allocation from Oasis. Our conclusions regarding these four months are reflected at Appendix D, in the column Estimate of Purchases from Oasis Absent Alleged Allocation Violations.
For the remaining relevant months, we do not have data on the allocation fractions of Luckys suppliers. It is possible, of course, that in some months Luckys purchases from these suppliers fell below 100% of its allocation due to tight supplies and resulting allocation fractions, and not because of a discretionary decision by Lucky. However, in months where Luckys purchases fell far short of 100%, this explanation is less plausible, such as in June 1980, when as the data at Appendix C show Lucky purchased only 13% of its allocation from its other base period suppliers. Nevertheless, because we do not have information on the allocation fractions in effect during these months, we have no basis for determining whether Lucky purchased the full allocation available to it. This makes it difficult to reasonably presume either that Lucky would have purchased its full allocation from Oasis, or that Lucky would have purchased nothing from Oasis because it did not purchase the product available to it from other suppliers.
Given this lack of information, we believe a reasonable alternative would be to assume that, in the absence of Oasis allocation violations, Lucky would have purchased a similar percentage of the total allocation due to it from Oasis as the percentage of allocation that it purchased from its other base period suppliers. The effect of this assumption it is to discount our estimation of the injury caused by Oasis alleged violations in a given month to the extent that Lucky did not purchase its allocation from its other base period purchasers in that month, and therefore the extent to which it is likely that Luckys level of purchases from other suppliers reflected a discretionary decision on Luckys part. Thus, for these remaining months, as set forth in the respective columns of Appendix D, we multiply the Base Period Allocation from RFI/Oasis by the Percentage of Allocation Purchased from Non- Violating Base Period Suppliers to arrive at the Estimate of Purchases from Oasis Absent Alleged Allocation Violations.
Based on the information set forth above, the data at Appendix D reflects our reasonable estimate of the number of gallons that Lucky would have purchased in each relevant month from Oasis in the absence of Oasis alleged allocation violations. By comparing this estimate to Luckys actual purchases from Oasis, we arrive at an estimate of the amount of Luckys shortfall in purchases from Oasis that we attribute to Oasis alleged violations.(7) We now must fashion an appropriate remedy for the injury sustained by Lucky.
The applicant argues for a remedy based on the per gallon profit of $0.209 made by Oasis on the gasoline it allegedly diverted from Lucky and other purchasers. KNK contends that this disgorgement measure of damages is appropriate because (1) Oasis wrongfully concealed from the DOE the amount of product that was available to supply downstream customers; (2) the obvious motivation for Oasis deception was the $0.209 gallon profit it received selling the diverted gasoline[;] and (3) in pursuing its remedies, the applicant has expended a substantial amount of work and money, and that expenditure has served the public good. Application at 27-31.
While the applicants arguments might, in other contexts, provide a sufficient basis for the remedy it urges, we do not agree such a remedy is appropriate here. Unlike in a civil court proceeding, our decision in this case will not order Oasis to pay damages, and so we would not in any real sense be forcing Oasis to disgorge any ill-gotten gains. In its settlement of the PROs, Oasis, or more accurately its bankruptcy estate, already agreed to pay a certain amount to the DOE, a part of which was placed in escrow for restitution to injured parties in the present refund proceeding. Thus, the amount that Oasis has paid and the amount that should be paid to the applicant in this proceeding are two separate and distinct issues. As to the latter issue, and as we discussed above, the PODRA authorizes the OHA to identify parties injured by any actual or alleged violation of the petroleum pricing and allocation regulations, to establish the amount of any injury incurred, and to make restitution to those parties. 15 U.S.C. § 4502(b). We would be exceeding our statutory authority under the PODRA if we were to award a refund that were not based on a measurement of injury to the applicant, as required by the statute. Moreover, such an award would necessarily contravene the restitutionary purposes of the PODRA by diverting funds from injured non-claimants designated by the PODRA to receive indirect restitution through the states. See 15 U.S.C. § 4502(c), (d).
We find that the appropriate remedy in this case would be an allocation refund based on lost profits for those supplies that we find Lucky would have purchased from Oasis absent its allocation violations. This is the basis upon which allocation refunds have been calculated in numerous prior Subpart V cases. See, e.g., Power Pak Co./Cando Oil & Gas Co., 19 DOE ¶ 85,765 (1989). In this case, the refund will be calculated by multiplying the number of gallons of shortfall that we attribute to Oasis alleged allocation violations, as set forth in Appendix D, by a reasonable estimate of the profit that Lucky would have made on the sale of that gasoline. The applicant has submitted an estimate, based on contemporaneous information on Luckys expenses and sales, that Lucky would have realized a pretax net profit of $0.0715 for each dollar increase in sales of gasoline. Application at Exhibit 13. Based on Luckys average selling price of $1.0336 per gallon of gasoline during the relevant period, this results in a net profit of approximately $0.0739 per gallon of gasoline sold. We find that this is a reasonable estimate and is comparable to the profit margin data used to compute allocation refunds in other Subpart V cases. Power Pak Co./Cando Oil & Gas Co., 19 DOE ¶ 85,765 (1989) ($0.086 per gallon); Mobil Oil Corp./Reynolds Industries, Inc., 17 DOE ¶ 85,608 (1988) ($0.0718 per gallon); Union Texas Petroleum Corp./Petroleum Supply, Inc., 14 DOE ¶ 85,163 (1986) ($0.0636 per gallon); OKC Corp./Town & Country Markets, Inc., 12 DOE ¶ 85,094 (1984) ($0.0961 per gallon); Standard Oil Company (Indiana)/Anchor Distributors, Inc., 12 DOE ¶ 85,030 (1984) ($0.0848 per gallon); Tenneco Oil Co./Research Fuels, Inc., 10 DOE ¶ 85,012 (1982) ($0.10 per gallon). As set forth in Appendix D, we attribute 5,341,156 gallons of Luckys shortfall in supplies from Oasis to alleged allocation violations. Assuming Lucky would have realized a net profit of $0.0739 per gallon on the sale of this gasoline, we estimate that Lucky experienced injury in the form of lost profits in the amount of approximately $394,724 as a result of Oasis alleged violations.
E. KNK claim regarding Lucky's right to Oasis "surplus" product
KNK further alleges that from March 1979 through January 1981, Oasis diverted a total of 208,175,216 gallons of gasoline away from purchasers with allocation rights. The applicant reasons that because Lucky's "share of RFI's base period sales to wholesalers was approximately 25.86% . . . [Lucky]'s proportionate share of Oasis' diverted supply is 25.86% of 208,175,216 gallons, or 53,834,111 gallons." Application at 21. However, as we explained in the PD&O and as we further explain below, although there is evidence that Oasis committed allocation violations, the applicant has not made a reasonable demonstration that, in the absence of those violations, Lucky would have been entitled to purchase over 50 million gallons of surplus product.
In the PD&O, we noted that Luckys estimate of the total amount of gasoline diverted by Oasis was based on Oasis pipeline sales from March 1979 through April 1980 and on an assumption that the rate of diversion during that period continued from May 1980 through January 1981. We stated that KNKs assumption was inconsistent with the fact that the latter period was one of easing supply and, more importantly, inconsistent with the ERA findings in connection with the Diversion PRO that Oasis' pipeline sales totaled 117,097,170 gallons for the period in question. PD&O at 10-11.
The applicant contends in its Objections, citing price data from May 1980 through January 1981, that while it could be said that supplies were easing, based on the evidence of prices, the supply shortage was probably easing only in that it was not tightening at the same steep rate as it had been previously. Objections at 24. We do not believe, however, that our conclusion in the PD&O is dependent on a definitive description of the supply situation during the period. As we stated in the PD&O, the more important information undermining the applicants assumption is the finding of the ERA that the volume diverted by Oasis is far less than that estimated by KNK. PD&O at 11. And despite stating earlier in its Objections that the Diversion PRO was erroneous, as KNK would show in response to any specific attempt to use the PRO, Objections at 10, the applicant does not dispute the ERAs finding in response to our specific reliance on it in the PD&O. See Objections at 23. We are still left, then, with serious reservations as to the reasonableness of the applicants estimate of the volume of gasoline diverted by Oasis.
Apart from the issue of whether the applicants estimate of Oasis diversion is reasonable, we found in the PD&O that KNKs estimate of the volume of product that would have been available as surplus and Luckys entitlement to 25.86% of it completely ignored the allocation rights of Oasis retail outlets and the other wholesale customers who were entitled to supplies under the August 3, 1979 court order. The applicant responds by arguing that, under the DOE regulations and following our prior decisions, the gasoline Oasis chose not to supply to its retail outlets must be treated as surplus. Objections at 24-25. KNK further contends that there is no evidence that Oasis violated the supply rights of any of the other wholesale customers. Id. at 25-26. KNKs arguments miss our point.
First, the reasonable demonstration that KNK must make is not, as the applicant puts the issue, whether diverted gasoline was surplus, . . . . Objection at 25. Quite the opposite, the issue is how much gasoline, if any, would have been surplus had the gasoline not been diverted, i.e. in the absence of allocation violations. For example, had Oasis not diverted gasoline to non-entitled customers, it could have exercised the rights of its own retail outlets to take the gasoline instead.(8) While it is certainly possible that Oasis might have offered all of this gasoline to RFIs former wholesale customers as surplus rather than supply its own outlets, the applicant offers no evidence demonstrating that this would have been a likely outcome.
Second, the record indicates that during the time period in question, the wholesale customers supplied by Oasis had an aggregate shortfall in their base period allocation of at least 34.8 million gallons. See Marathon/Lucky Stores, 22 DOE at 88,159 n.10; see also Lucky Stores, 14 DOE at 85,019 (citing complaints of BLT, Inc. and Trans-Texas Petroleum Corporation). While KNK points to the absence of actual evidence that Oasis violated the supply rights of the other wholesalers, Objection at 25, we need not make a finding of such violations in order to assume that, in the absence of the alleged allocation violations, the other wholesale customers would have purchased their base period allocation from Oasis. Indeed, as discussed in Section II.D above, we could have made an equally reasonable assumption that Lucky also would have purchased its full allocation from Oasis were it not for the contradictory evidence in the record regarding Luckys purchases from its other suppliers. The applicant offers no evidence that would similarly undermine our assumption regarding the other wholesale purchasers. Without this or any other evidence to support its contention, the applicant has not made a reasonable demonstration that the base period supplies we assume would have been purchased by the other wholesale customers would have instead been surplus available to Lucky. In sum, because KNK has not shown that there would have been any surplus product left over after fulfilling the allocation entitlements of these customers as well as those of the Oasis retail outlets, there is no basis for considering a claim in excess of Lucky's base period allocation.(9)
III. Conclusion
For the foregoing reasons, we will approve a refund of $394,724 to the applicant for injury suffered by its predecessor, Lucky Stores, Inc., as a result of alleged Oasis allocation violations, as well as a pro rata share of the interest that has accrued on the principal since the settlement fund was placed in the appropriate DOE deposit fund escrow account. The total refund amount granted to KNK is $537,869 (comprised of $394,724 in principal and $143,145 in interest).
It Is Therefore Ordered That:
(1) The Application for Refund filed by Kash n' Karry Food Stores, Inc., Case No. RF348-1, is hereby granted as set forth in paragraph (2) below.
(2) The Director of Special Accounts and Payroll, Office of Departmental Accounting and Financial Systems Development, Office of the Controller, the Department of Energy, shall take appropriate action to disburse from the DOE deposit fund escrow account maintained at the Department of the Treasury for this purpose and funded by Oasis Petroleum Corporation, Consent Order No. 940X00217Z, $537,869 (comprised of $394,724 in principal and $143,145 in interest) to:
Kash n' Karry Food Stores, Inc.
c/o Jack P. Caolo
Attorney at Law
P.O. Box 822687
Dallas, TX 75382
(3) The determination made in this Decision and Order is based on the presumed validity of statements and documentary material submitted by the applicant. This determination may be revoked or modified at any time upon a determination that the factual basis underlying any Application for Refund is incorrect.
(4) This is a final Order of the Department of Energy.
George B. Breznay
Director
Office of Hearings and Appeals
Date:September 2, 1998
(1)The Implementation Order was issued in response to a January 5, 1990 Petition for Implementation of Special Refund Procedures that the ERA filed with the OHA. See 10 C.F.R. Part 205, Subpart V.
(2) KNK included in its base period allocation for the month of March 1979 gasoline delivered to Lucky by Tenneco on behalf of RFI during March 1978. Although Tenneco was a supplier of RFI during the base period, Oasis did not claim an entitlement based on RFI's base period purchases from Tenneco. Because these supplies were not part of the disputed allocation over which Oasis attempted to gain control, the base period allocation for March 1979 listed at Appendix A excludes supplies from Tenneco.
(3)We note that we find nothing in DOEs Proof of Claim that refers to Oasis obligation to supply RFIs wholesale customers, as contended by the applicant.
(4) The base period allocations for August 1979 and March and August 1980 listed at Appendix B exclude supplies from Tenneco. As we stated above, although Tenneco was a base period supplier of RFI, Oasis did not claim an entitlement to supply from Tenneco based on RFI's base period purchases. See infra note 4. Moreover, the scope of the August 3, 1979 order was limited to the supplies from Marathon and Cities Services Company sold by RFI to the wholesale customers during the base period. Oasis Petro Energy Corp. v. Dep't of Energy, No. CA-3-79-0778-F (N.D. Tex. Aug 3, 1979). Because Oasis' obligation to supply RFI's wholesale customers arose from this order, Oasis was not obligated to supply Lucky with that portion of its base period allocation from RFI which originated from Tenneco.
(5)The applicant does separately request a refund for surplus product from Oasis, which we address in Section II.E below.
(6) Under the regulations then in effect, A suppliers allocation fraction for any period which corresponds to a base period for an allocated product shall be equal to its allocable supply of that product, . . . divided by its supply obligation . . . . 10 C.F.R. § 211.10(b). The regulations further state, When a suppliers allocation fraction is less than one (1.0), a supplier shall reduce, on a pro-rata basis, the amounts supplied to end-users and wholesale purchasers . . . . 10 C.F.R. § 211.10(f).
(7) In the PD&O, we noted that Lucky purchased from suppliers other than its base period suppliers and that this represented surplus that was available to mitigate any injury caused by Oasis alleged violations. However, we do not find that these purchases further mitigate Luckys injury beyond the calculation set forth in Appendix D. Luckys pattern of purchases, as described above, indicates that its roughly 15 million gallons of non-base period purchases likely would have served as partial replacement for the approximately 18 million gallons of product we estimate that Lucky would have chosen not to purchase from its base period suppliers, including Oasis. See Appendix D, PD&O at Appendices B and C. Because in the analysis above we discounted our estimation of Luckys injury based on the gallons of gasoline we conclude Lucky would not have purchased from Oasis and instead would have purchased from non-base period suppliers, we have already taken into account the mitigating effect of Luckys non-base period purchases.
(8) Under the allocation regulations, each retail outlet was considered a separate firm and a separate wholesale purchaser-reseller. Therefore, the regulations provided that a supplier's obligation to provide gasoline be determined separately for each retail outlet without distinguishing between retail outlets operated by the supplier and outlets not operated by the supplier. 10 C.F.R. § 211.106(b). While Oasis closed or curtailed operations at many of its retail outlets during the period relevant to this proceeding, those outlets remaining open clearly retained their entitlement to their base period supplies and a proportionate share of surplus product, if any existed. Moreover, the applicant has alleged that Oasis closed outlets in order to divert to the spot market the gasoline entitlement of these outlets. See Submission by Lucky Stores, Inc. in Marathon/Lucky Stores at 9 (December 22, 1987). In Lucky Stores, we found that Oasis was not able to rebut a similar allegation made by RFI. Lucky Stores, 14 DOE at 85,044-48. Thus, it is likely that the closed outlets would have remained open and retained their allocation rights in the absence of Oasis' alleged diversion.
(9) The applicant also contends that Luckys initial complaints regarding Oasis and its continued pursuit of those complaints potentially benefited all of RFIs wholesalers, . . . Objection at 26. KNK cites Luckys actions as additional equitable factors which justify KNK receiving a refund based on surplus. Id. As we stated above in response to KNKs argument that Luckys actions served the public good, we would be exceeding our statutory authority under the PODRA and undermining other restitutionary purposes of the Act if we were to award a refund that were based on anything other than the measurement of injury required by the statute. Thus, Luckys efforts cannot form an independent basis for granting a refund higher that is otherwise warranted.