Case No. RK272-04734

February 11, 1998

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Supplemental Order

Name of Applicant: Dr. Pepper, 7-Up, Royal Crown Bottling Company of Arkansas

Date of Filing: January 13, 1998

Case Number: RK272-04734

This Decision and Order will consider an Application for Supplemental Refund filed in the Subpart V crude oil refund proceeding by Dr. Pepper, 7-Up, Royal Crown Bottling Company of Arkansas (Dr. Pepper).(1) The Application is based upon purchases of refined petroleum products made by 7-Up Bottling Company of Arkansas (7-Up) from August 1973 to January 1981.

In the Application, Charles Fullen of Dr. Pepper stated that Dr. Pepper, under its previous name, Dr. Pepper Bottling Company of Paragould, purchased all assets of 7-Up in 1989. In a telephone conversation with the OHA on February 6, 1998, Mr. Fullen explained that the purchase was an asset purchase only, and that Dr. Pepper did not buy any of the capital stock in 7-Up.

We have a statutory duty to identify and provide restitution to injured persons. 15 U.S.C. § 4502 (b). We would be negligent in discharging that duty if we granted a refund to someone other than an identified injured person. Texaco/Huffy Gas, 22 DOE ¶ 85,220 at 88,586 n. 4. Therefore, the refund procedures we have established provide that the right to receive a refund generally remains with the owner of a firm during the price control period. Nevertheless, the right to receive a refund can be transferred to a subsequent

owner of the firm if: (i) the firm is a corporation, the entire capital stock of which was purchased by the subsequent owner; or (ii) the firm's assets were sold under an agreement that indicated, either explicitly or implicitly, that potential refunds were being transferred. Mrs. M.B. Troy, 23 DOE ¶ 85,049 (1993).

According to Mr. Fullen, Dr. Pepper did not purchase any of the capital stock of 7-Up. In addition, there is no indication in the Application that the right to receive future crude oil refund monies was either explicitly or implicitly included in the sale of 7-Up’s assets to Dr. Pepper. As such, the owners of the capital stock of 7-Up did not relinquish their right to receive the supplemental crude oil refund based on the company’s petroleum purchases during the price control period. We will therefore deny the Application submitted by Dr. Pepper.

It Is Therefore Ordered That:

(1) The Application for Supplemental Refund filed by Dr. Pepper, 7- Up, Royal Crown Bottling Company of Arkansas, Case No. RK272-04734, is hereby denied.

(2) This is a final Order of the Department of Energy.

George B. Breznay

Director

Office of Hearings and Appeals

Date: February 11, 1998

(1) For information pertaining to the Supplemental Distribution of Subpart V Crude Oil Refund Monies, see State of Montana, et al., 25 DOE ¶ 85,059 (1995).