Kent v. R.L. Vallee, Inc. et al., No. 617-6-15 Cncv (Toor, J., May 6, 2016).

[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the t ext and the
accompanying data included in the Vermont trial court opinion database is not guaranteed.]



                                                     VERM ONT SUPERIOR COURT
                                                        CHITTENDEN UNIT
                                                          CIVIL DIVISION

                                                                          │
JACOB R. KENT, et al.,                                                    │
 Plaintiffs                                                               │
                                                                          │
    v.                                                                    │                  Docket No. 617-6-15 Cncv
                                                                          │
R.L. VALLEE, INC., et al.,                                                │
 Defendants                                                               │
                                                                          │


                               RULING ON DEFENDANTS’ MOTION TO DISMISS

           In this class action, plaintiffs allege price-fixing by defendants, who are wholesale and

retail sellers of unleaded gasoline in Chittenden, Franklin, and Grand Isle counties. Specifically,

plaintiffs claim violations of the Vermont Consumer Protection Act (VCPA) (9 V.S.A. § 2453) as

to wholesale gasoline (Count I) and retail gasoline (Count II), as well as unjust enrichment (Count

III). Defendants have moved to dismiss pursuant to V.R.C.P. 12(b)(6), and also on statute of

limitations grounds. Each defendant has filed a separate motion to dismiss, with generally

overlapping arguments.

                                                  PLAINTIFFS’ ALLEGATIONS

           The following facts are alleged by plaintiffs in their complaint. 1 The court makes no

findings as to their accuracy.

           Plaintiffs bring this action individually and on behalf of the class, which consists of

Vermont citizens and businesses who purchased unleaded gasoline at retail gasoline stations in



1
 Throughout this decision, “complaint” or “compl.” refers to plaintiffs’ First Amended Complaint, filed on July 30,
2015, unless otherwise indicated.
Chittenden, Franklin, and Grand Isle counties (the “class area”) during the class period (January

1, 2005 through the present). Compl. ¶ 2. The defendants are four Vermont corporations: R.L.

Vallee, Inc., S.B. Collins, Inc., Champlain Farms/Wesco, Inc., and Champlain Oil Company, Inc.

           Average retail gasoline prices in the class area have been inexplicably and persistently

higher than elsewhere in the state—such as Middlebury and Rutland—and other areas of the

Northeast and the United States. 

Defendants’ gross wholesale and retail profits have

periodically been: (1) twice the national average; (2) second highest out of 450 gasoline markets

measured in the country; and (3) highest within New England. 

the high prices

and profits are the result of a price-fixing agreement among defendants. See 

           The class area contains a highly concentrated wholesale and retail gasoline market.

Defendants collectively own or control at least four of the six meaningful gas suppliers, a 67%

market share, and at least 64% of all class area gas stations. Additionally, defendants own and

lease back gas pumps at several independently owned stations. Thus, defendants control wholesale

pricing and as a result retail pricing at their stations and at several independent stations, with those

stations passing on defendants’ wholesale prices to consumers. 

           Several phenomena persist in the class area and during the class period that generally do

not exist in competitive, non-collusive markets. One example alleged by plaintiffs is that

defendants’ wholesale and retail prices have been nearly identical, and the stations supplied by

defendants have adjusted retail prices in direct relation to defendants’ wholesale prices. 

60–62. More specifically, defendants’ wholesale prices have increased and decreased by the same

or similar amounts on the same days. 

Likewise, retail prices at defendants’ stations and

stations they supply in the class area (over 100 stations) moved virtually in lockstep. 

                                                   2
During the class period, S.B. Collins typically sold gas at its Chittenden County station two cents

above prices at Champlain Oil and Wesco stations, and three cents above stations owned by R.L.

Vallee. 

This suggests, plaintiffs allege, that retail prices at Chittenden County stations

were simply following collectively fixed wholesale prices. 

charged a

higher price to the independently owned gas stations they supplied, forcing them to charge higher

prices to the class. 

If a co-conspirator had an incentive to take market share and

profits by lowering its price, the other defendants could simply threaten to lower wholesale prices,

thus reducing retail prices and “enforc[ing] the terms of the cartel.” 

           Market prices often have not been logically related to terminal rack costs. 2 Market prices

have: (1) increased or remained unchanged in times of declining cost, (2) increased when costs

have not changed, and (3) decreased at a disproportionately smaller amount and pace than the

decline in costs. 

Specifically, plaintiffs allege that from 2010 to 2015, there were six distinct

periods of declining terminal rack prices, where defendants increased the price spread between

Chittenden County and Rutland. 

The average time span of the six distinct periods was 94

days, including one 210-day span where the price spread quadrupled. 

earned outsized gross profits, often in the top 10 of 450 gasoline markets

measured in the United States. 

Defendants were able to achieve “abnormal and exorbitant”

profits on the sale of gasoline within the class area. 

Their profit margins exceeded the

margins realized by comparable gas stations outside of the class area within comparative markets

in Vermont and throughout the United States. 

The Oil Price Information Service, a

company that tracks the terminal and retail prices of gasoline throughout the country, found that




2
    “Terminal rack cost” refers to the price at which defendants acquire gasoline. Compl. ¶ 7.


                                                            3
the Burlington area was the most profitable gasoline market for retailers in the northeast United

States and often in the top ten nationwide. 

       Defendants have maintained their wholesale and retail market shares despite numerous

opportunities to compete on price to acquire market share. 

In competitive markets and

during periods of declining costs, profit-motivated competitors would typically decrease prices to

take more market share. 

However, that did not happen among defendants during the class

period and within the class area. 

frequently acquired real property on which they have imposed deed

restrictions barring future use as gas stations to further limit competition or dilution of market

share. 

Additionally, defendants have used Vermont environmental laws to obstruct the

entry of low-cost gasoline providers and to extract unreasonable covenants that prevent or limit

competition. 

to those barriers to entry, plaintiffs allege two examples within the class area.

First, in 2010 R.L. Vallee opposed Walmart’s bid to build a discount store in Franklin County until

it was written into the permit that “there shall be no sale of gasoline for automobiles.” 

Second, R.L. Vallee has partnered with Wesco since 2007 to oppose Costco’s plans to build a

filling station in Colchester, Vermont. 

The entry of Costco into the market “would have

meant the addition of a major low cost player acting outside of the cartel.” 

three additional examples, all of them outside of the class area. Two involved deed and permitting

restrictions at gas stations in Plainfield in 2012 and 2013–2014, while the other involved the

closing of a gas station in St. Johnsbury in 2014. See 

       When confronted by federal and state elected officials, Defendants have given pretextual

or plainly false explanations for their pricing behavior, such as claiming they did not make a profit,




                                                  4
or that they lost money on gasoline for substantial periods within the class period. 

75, 80–

81. While the issue at the legislative hearings was why a certain area of Vermont had higher prices

than elsewhere in the state, defendants tried to confuse the issue by interjecting: (1) factors that

apply throughout Vermont; (2) irrelevant comparisons between Vermont and other states; and (3)

other “nonsensical red-herrings” that could not have explained the high price of gasoline within

the class area. 

This was a “blatant attempt at misdirection” to conceal ongoing price

coordination. 

       The proffered justifications for high gas prices provided by defendants at the hearings

included freight differences, the high cost of living in Vermont, high terminal costs, fluctuation in

wholesale price with limited turnover, overhead which can vary from location to location, labor

costs, environmental compliance, repair costs, health insurance, utility costs, credit card fees, cost

of crude available in Vermont, law enforcement authority reluctance to pursue people stealing gas,

property taxes, costs to build gas stations and replace underground storage tanks, variable sales

volumes, amenities such as hot coffee and made-to-order food, and clean bathrooms with fresh

flowers. 

Additionally, the R.L. Vallee CEO gave an “irrelevant speech” about alleged

environmental violations of a possible competitor, and how much his company is appreciated in

the community. 

The hearing testimony summarized above, plaintiffs allege, does not

explain the high price of unleaded gasoline in the class area, and only further demonstrates that

defendants engaged in a price-fixing conspiracy. 

80–87.

       Additionally, the Federal Trade Commission concluded that gas prices in the greater

Burlington area in late June 2012 were 10 to 43 cents a gallon higher than the FTC’s computer

model predicted they should be. 

Plaintiffs allege further evidence of collusive behavior in

that defendants temporarily reduced their prices and profit margins before August 2012 and




                                                  5
January 2013 legislative hearings investigating high gas prices in northwestern Vermont. 

These price reductions were executed despite rising costs for the purpose of masking illegally high

prices charged at all other times, and demonstrates that defendants had control of the market. 

that this evidence “does not support the possibility of innocent,

independent pricing decisions” and “instead points directly to an extensive price-fixing scheme of

long duration” perpetrated by defendants. 

More specifically, plaintiffs allege, the facts

and data show that: (1) defendants agreed to set their wholesale prices at nearly identical levels to

maintain retail prices at virtually all stations in the class area at illegally high levels; (2) defendants

agreed to increase, decrease, and maintain their prices at or near the same time and by the same

amount; (3) defendants’ wholesale price-fixing directly inflated prices both at their stations and at

the independent stations they supply; and (4) the class paid illegally inflated prices at defendants’

stations and at the stations they supply. 

defendants might have pilfered over

$100 million from the class during the class period. 

        In sum, “[p]laintiffs allege that during the Class Period, Defendants conspired to fix, raise,

maintain, and/or stabilize unleaded gasoline prices being charged at wholesale and to all Vermont

citizens who purchased gasoline in the Class Area. Because of Defendants’ unlawful conduct,

Plaintiffs paid artificially-inflated prices for unleaded gasoline, and, as a result, suffered monetary

damages.” 

        In the complaint,       plaintiffs   allege that defendants discussed and formed their

anticompetitive agreements during “secret meetings and conversations, often conducted at

undisclosed, out-of-the-way locations.” 

However, during oral argument, plaintiffs

retreated from their “secret meeting” allegation, instead relying on their assertion that defendants




                                                     6
had the opportunity to meet. See Tr. of Hr’g on Mots. to Dismiss at 43–44; Compl. ¶ 59. 3

Specifically, the complaint alleges such opportunities through membership in the Vermont

Petroleum Association by all defendants, which convened regular trade association meetings and

more informal events like an annual golf tournament which “some or all of the [d]efendants” might

have attended. 

allege that the fact that defendants collectively agreed to one agent

for representation at legislative hearings in 2012, 2013, and 2015, further demonstrates such

opportunity to meet. See 

that they did not discover their cause of action earlier than immediately

before the filing of this lawsuit because of defendants’ fraudulent concealment of their conspiracy.

Thus, plaintiffs assert the tolling of the statute of limitations. 

                                                DISCUSSION

                                          I.       Statute of Limitations

        First, the court addresses the statute of limitations issue raised by Champlain Oil and

Wesco. Those defendants contend the six-year statute of limitations has run because the class

period started in 2005, and plaintiffs were in possession of enough facts to pursue and investigate

their claim at that point. Plaintiffs’ complaint alleges that despite due diligence during the class

period, plaintiffs did not and could not discover their cause of action until immediately before the

filing of this lawsuit in 2015 due to defendants’ fraudulent concealment. Compl. ¶¶ 76–91.

        In their opposition memo, Plaintiffs argue that the conspiracy was discovered in 2012. See

Pl.’s Opp’n to Defs.’ Mots. to Dismiss at 16 n.8 (filed Nov. 2, 2015). They also argue that the

statute of limitations issue cannot be resolved on a motion to dismiss, arguing that this is a fact-

intensive question that must be resolved by a jury. 

is true that disputed facts regarding


3
 In a separate order, the court is today granting defendants’ motion to strike paragraph 79 of the complaint, which
had alleged the secret meetings. Thus, the court treats paragraph 79 as deleted.


                                                        7
the time of discovery must go to a jury, plaintiffs are still required to plead facts that, if proved,

would establish their tolling claim.

       Defendants contend that discovery of the alleged conspiracy occurred simply by reviewing

publicly available pricing data from 2005 and concluding that it amounted to a conspiracy. Thus,

defendants argue, plaintiffs were on inquiry notice because the pricing data existed for years before

the statute of limitations ran, and they point to no fact discovered in 2012 that could not have been

discovered earlier. Retail gas prices are publicly posted on large signs, and public hearings were

held regarding gas prices. Defendants further argue that by alleging no facts that would support a

claim or inference of fraudulent concealment, plaintiffs fail to satisfy the heightened pleading

standard for fraud contained in Rule 9(b) (“In all averments of fraud or mistake, the circumstances

constituting fraud or mistake shall be stated with particularity.”).

       “If properly pleaded, fraudulent concealment can vitiate the statutory bar of the limitations

defense.” Fercenia v. Guiduli, 

, ¶ 14, 

(citing S. Burlington Sch. Dist. v.

Goodrich, 

, 606 (1977)). The Vermont Supreme Court has applied the same pleading

rule in cases where the fraud is pled to avoid the statute of limitations rather than as a separate,

affirmative claim. 

fraud . . . must be pled with particularity.”); Standard

Packaging Corp. v. Julian Goodrich Architects, Inc., 

, 380–81 (1978); see also In re

Elec. Carbon Products Antitrust Litig., 

, 315 (D.N.J. 2004) (plaintiffs seeking

to toll statute of limitations based on defendant’s fraudulent concealment must allege underlying

acts of fraudulent concealment with particularity as required by heightened pleading standard for

fraud claims); Boland v. Consol. Multiple Listing Serv., Inc., 

, 518 (D.S.C.

2011); Doe v. Order of St. Benedict, 

, 877 (D. Minn. 2011).




                                                   8
       In the antitrust context, courts have generally held that a plaintiff must allege three elements

of fraudulent concealment to avoid the statute of limitations: (1) affirmative acts by defendant to

fraudulently conceal its conduct, (2) failure of plaintiff to discover the facts forming the basis of

its claim within the limitations period, and (3) plaintiff’s exercise of due diligence in attempting

to discover those facts. State of N.Y. v. Hendrickson Bros., 

, 1083 (2d Cir. 1988);

In re Ciprofloxacin Hydrochloride Antitrust Litigation, 

, 222 (E.D. N.Y. 2003);

In re Nine West Shoes Antitrust Litigation, 

, 192 (S.D. N.Y. 2000); J. Miles, 1

Health Care and Antitrust L. § 9:10 n.32 (2016) (listing cases).

       With respect to the first element, price-fixing and bid-rigging are considered “self-

concealing” conspiracies, whose natures are “inherently secret.” Miles, 1 Health Care and Antitrust

L. § 9:10 and n.35 (listing cases). Thus, merely alleging a price fixing conspiracy is sufficient as

to that element, and plaintiffs need not plead that defendants took independent, affirmative steps

of concealment. See Hendrickson 

–84; Hinds Cty., Miss. v. Wachovia Bank

N.A., 

, 520 (S.D.N.Y. 2009); Nine West 

.

       As to the second element, plaintiffs have pled that they “did not discover their cause of

action until immediately before the filing of this lawsuit because [d]efendants’ fraudulent

concealment of their conspiracy was effective.” Compl. ¶ 89. Some federal cases have found such

allegations insufficiently particular under Rule 9(b). In Hinds, the plaintiffs failed to plead the

second prong of fraudulent concealment where they alleged that “Plaintiffs and the Class members

did not discover . . . that Defendants and their coconspirators were violating the antitrust laws until

shortly before this litigation was 

. The complaint in Hinds

did “not specify when any Named Plaintiffs or Class members became aware of the antitrust

violations, and therefore [did] not state ‘with particularity the circumstances constituting fraud or




                                                  9
mistake.’” 

9(b)); see also In re Magnetic Audiotape Antitrust Litig., No. 99

Civ. 1580, 

, at *3 (S.D.N.Y. May 9, 2002) (allegation that knowledge about the

alleged antitrust violation “was obtained ‘shortly before April 1999’ is very vague. Such a general

allegation, without more, fails to satisfy the second prong of the fraudulent concealment test.”).

         Plaintiffs’ allegations of the second element of fraudulent concealment is similar to the

Hinds allegation, which that court found insufficient. Vermont case law suggests the same

conclusion. In a case involving an action for damages resulting from the collapse of portions of a

building, the plaintiffs4 alleged negligent installation of steel structural supports for the building’s

roof and sprinkler system. See Standard Packaging Corp. v. Julian Goodrich Architects, Inc., 

, 377–78 (1978). The complaints charged that the defendants “‘actively concealed’ the

defective work, which ‘was not apparent to [plaintiff] in the exercise of reasonable diligence and

was a latent rather than a patent defect.’” 

The complaints also stated that the defective

construction was discovered only when the building’s roof collapsed. 

Court held

that these allegations were sufficient to raise the issue of fraudulent concealment and bring the

complaint within the applicable six year limitations period. 

         In Standard Packaging, the complaint pled when and how plaintiff discovered the cause of

action. In contrast, plaintiffs here have alleged merely that they “did not discover their cause of

action earlier than immediately before the filing of this lawsuit.” Compl. ¶ 89. This does not rise

to the level of pleading with particularity under Rule 9(b). Plaintiffs do not state exactly when they

discovered the cause of action, even though such information is presumably based on their actual

knowledge and readily available.



4
 The plaintiffs in Standard were actually third-party plaintiffs, the complaints third-party complaints, and defendants
third-party defendants. However, this court refers to them as plaintiffs, complaints, and defendants for ease of
discussion.


                                                          10
           As to the third element, plaintiffs pled that although they “exercised due diligence” during

the class period, they “could not have discovered the self-concealing . . . conspiracy at an earlier

date” because of defendants’ fraudulent concealment. Compl. ¶ 90. In Hinds, the court found the

allegations as to the third element insufficient to satisfy Rule 9(b). There, the plaintiffs did not

allege that they performed any kind of due diligence, only that “Plaintiffs and Class members did

not discover, nor could have discovered through reasonable diligence, that Defendants and their

co-conspirators were violating the antitrust laws until shortly before this litigation was

commenced, because Defendants and their co-conspirators used deceptive and secret methods to

avoid detection and affirmatively conceal their 

–22. The court

concluded that a “brief reference to ‘reasonable diligence,’ coupled with general allegations of

secrecy and deception directed towards the first prong of fraudulent concealment,” was not

enough.5 

see also Nine West 

(“Plaintiffs must plead due

diligence with specificity.”).

           This court finds the Hinds analysis persuasive under the heightened pleading standard for

fraud. Here, plaintiffs do not provide any detail as to how they exercised due diligence. They do




5
    The Hinds court observed that the case law regarding the third prong is “not entirely consistent”:

                    The third prong has been characterized as requiring a showing that the plaintiff’s
                    ignorance of the claim “was not the result of lack of diligence,” Hendrickson
                    

. It has also been characterized as a requirement that a
                    plaintiff show “due diligence in pursuing discovery of the claim,” National 

; see also Merrill 

.

620 F. Supp. 2d at 522. Finding the first formulation “problematic” because it “allows the allegations required to
satisfy the first prong of fraudulent concealment to also satisfy the third prong” and “is difficult to characterize . . . as
pleading with particularity,” the Hinds court noted that it agreed with other courts that in this context, “[g]eneral
assertions of ignorance and due diligence without more specific explanation . . . will not satisfy the[ ] pleading
requirements.” 

original). Thus, “[d]ue diligence is not adequately pled if plaintiffs ‘did not allege in
the [complaint] that they exercised due diligence’ or if they ‘make no allegation of any specific inquiries of
[defendants], [or] detail when such inquiries were made, to whom, regarding what, and with what response.’” 

) (alterations in original).



                                                            11
not state whether they discovered their cause of action from retail prices alone, or examination of

retail prices together with wholesale prices and profits after a particular investigation, or through

some other means. Without any particularity, plaintiffs cannot rely on the fraudulent concealment

exception to avoid the statute of limitations. 6

         However, plaintiffs’ failure to plead fraudulent concealment with particularity does not

doom their entire action. The statute of limitations excludes only that portion of the class period

before the six-year period immediately prior to the filing of the lawsuit. Plaintiffs do not allege

merely a single agreement that took place in 2005 or a conspiracy that ended more than six years

before the suit was filed. Rather, they allege an on-going price-fixing conspiracy between 2005

and 2015. The allegations as a whole, if sufficient to suggest a price fixing conspiracy, would place

that conspiracy—at least in part—during the limitations period.

         The original complaint in this suit was filed on June 22, 2015. Therefore, any alleged

conspiratorial acts or injuries which occurred prior to June 22, 2009 are time-barred.7




6
  Plaintiffs’ attorney described their investigation in some detail at oral argument. See Tr. at 37–41. However, that is
irrelevant if not pled in the complaint.
7
  At oral argument, plaintiffs also claimed that the alleged price-fixing constitutes a “continuing violation,” and that
that saves the entire class period from the statute of limitations. Tr. at 51. It is far from clear that the “continuing
violation” theory would save the entire class period. See Klehr v. A.O. Smith Corp., 

, 189–90 (1997)
(“Antitrust law provides that, in the case of a ‘continuing violation,’ say, a price–fixing conspiracy that brings about
a series of unlawfully high priced sales over a period of years, ‘each overt act that is part of the violation and that
injures the plaintiff,’ e.g., each sale to the plaintiff, ‘starts the statutory period running again, regardless of the
plaintiff's knowledge of the alleged illegality at much earlier times.’ But the commission of a separate new overt act
generally does not permit the plaintiff to recover for the injury caused by old overt acts outside the limitations period.”)
(quoting 2 P. Areeda & H. Hovenkamp, Antitrust Law ¶ 338b, p. 145 (rev. ed.1995)) (citations omitted); Hanover
Shoe, Inc. v. United Shoe Machinery Corp., 

, 502 n. 15 (1968); Morton’s Mkt., Inc. v. Gustafson’s Dairy,
Inc., 

, 827–29 (11th Cir. 1999); 

. In any event, this issue was not addressed
in the pleadings or the briefs. Therefore, the court will not consider it.


                                                            12
                              II.     First Amendment Protected Activity

       Some of the conduct alleged by plaintiffs includes lobbying, permitting activity, and

testimony before public hearings. The parties agree that this activity cannot form the basis of an

antitrust violation under the Noerr-Pennington doctrine. See Prof’l Real Estate Inv’rs, Inc. v.

Columbia Pictures Indus., Inc., 

, 56 (1993) (“Those who petition government for

redress are generally immune from antitrust liability.”) (citing Eastern Railroad Presidents

Conference v. Noerr Motor Freight, Inc., 

(1961)); Mine Workers v. Pennington, 

, 669 (1965)). However, as plaintiffs correctly observe, evidence of such activity might

be admissible to demonstrate the purpose and character of the alleged conspiracy. 

n.3; see also, e.g., Steward Health Care Sys., LLC v. Blue Cross & Blue Shield of

Rhode Island, 

, 163 (D.R.I. 2014) (“a plaintiff may properly include evidence

of immune lobbying activity in its antitrust allegations insofar as that evidence serves to illustrate

the context and motive underlying the alleged anticompetitive conduct”); Evans v. Lorillard

Tobacco Co., 

, 457 (2013) (“Here, the plaintiff did not allege at trial that Tisch’s

testimony before the congressional subcommittee was the basis of any of the plaintiff’s claims.

Rather, portions of Tisch’s testimony were offered as evidence in support of these claims.”).

       Thus, the court will consider below plaintiffs’ allegations of defendants’ lobbying,

permitting activity, and testimony not as a basis for the claimed violation, but to the extent that

those activities provide factual support for the price-fixing claim.




                                                 13
                                    III.    The Pleading Standard

       The crux of the motions to dismiss is whether plaintiffs have adequately pled a price-fixing

conspiracy by defendants so as to avoid dismissal for failure to state a claim. However, a

preliminary inquiry deals with the pleading standard itself.

       The burden on plaintiffs under Vermont law is “exceedingly low” at the pleading stage.

Prive v. Vermont Asbestos Group, 

, ¶ 14, 

. Motions to dismiss for failure to

state a claim are “disfavored and should be rarely granted.” Bock v. Gold, 

, ¶ 4, 

. Complaints are intended to give enough notice to the defendant to allow a response, but

need not lay out every detail of the facts supporting the claim. See Colby v. Umbrella, Inc., 

, ¶ 13, 

(“The complaint is a bare bones statement that merely provides the

defendant with notice of the claims against it.”). As our Supreme Court has noted, the goal is to

“strike a fair balance, at the early stages of litigation, between encouraging valid, but as yet

underdeveloped causes of action and discouraging baseless or legally insufficient ones.” 

Supreme Court has rejected the federal standard on which Colby was based,

finding that the “no set of facts” language had “puzzl[ed] the profession for 50 years” and had

“earned its retirement.” Bell Atl. Corp. v. Twombly, 

, 562–63 (2007). Instead,

Twombly speaks of pleading sufficient facts to make the plaintiff’s claims not just possible, but

“plausible.” 

570. The decision is confusing, as it seems at times to be creating a “more

likely than not” standard, yet denies it is doing so. 

see also In re Text Messaging

Antitrust Litig., 

, 629 (7th Cir. 2010) (observing that Court’s explanation of

plausibility standard is “a little unclear,” but perhaps is best described as “a nonnegligible

probability that the claim is valid[.]”). The Twombly standard, the Court later explained, is “not

akin to a ‘probability requirement.’” Ashcroft v. Iqbal, 

, 678 (2009).




                                                14
          One defendant (S.B. Collins) argues in its briefings that the court should adopt Twombly’s

“plausibility” pleading standard for antitrust cases in Vermont. 8 Twombly held that stating an

antitrust claim “requires a complaint with enough factual matter (taken as true) to suggest that an

agreement was 

. Therefore, “an allegation of parallel conduct and a bare

assertion of conspiracy will not suffice. Without more, parallel conduct does not suggest

conspiracy, and a conclusory allegation of agreement at some unidentified point does not supply

facts adequate to show illegality.” 

Adopting the Twombly standard, defendant

argues, would alleviate concerns about expensive and expansive discovery that is unique to

antitrust cases. See 

         The Vermont Supreme Court has twice declined to adopt Twombly’s pleading standard.

See Colby v. Umbrella, Inc., 

, ¶ 5 n.1, 

(“[W]e . . . are in no way bound by

federal jurisprudence in interpreting our state pleading rules. We recently reaffirmed our minimal

notice pleading standard . . . and are unpersuaded by the dissent’s argument that we should now

abandon it for a heightened standard.”) (citations omitted); Bock v. Gold, 

, ¶5 n.*, 

(“As we noted recently, our dissenting colleagues’ reliance on [Twombly] is

misplaced.”).10 S.B. Collins tries to distinguish those cases, noting that Colby involved a section

1983 discrimination claim by a disabled state employee, while Bock involved a civil rights suit




8
 This argument was not raised at oral argument, so it appears S.B. Collins has backed away from it. To the extent
S.B. Collins still relies on that argument, the court addresses it here for clarification.
9
  “Hence, when allegations of parallel conduct are set out in order to make a[n antitrust] claim, they must be placed in
a context that raises a suggestion of a preceding agreement, not merely parallel conduct that could just as well be
independent action.” 

.
10
   There is also considerable disagreement as to whether Twombly actually imposed a heightened pleading standard,
or merely clarified the already existing standard under Conley v. Gibson, 

(1957). See Colby, 

, ¶ 5 n.1; 

n.3 (Burgess, J., dissenting); Wright & Miller, 5 Fed. Prac. & Proc. Civ. §§ 1202, 1216 (3d ed.).
It is not clear that the decision in Twombly would actually change the result in any pre-Twombly antitrust decisions
involving motions to dismiss.


                                                          15
against DOC by a prisoner. In those cases, defendant argues, there was a much greater disparity of

resources between the plaintiffs and the state, plaintiffs there had difficulty articulating their

claims, and discovery was not overly burdensome. Thus, S.B. Collins argues that the Court’s

rationale is inapplicable here.

       It is true that the Court has not addressed the question of whether there should be a higher

pleading standard for antitrust cases. However, the Court has not rested its decisions on the type

of cases it was considering. The Court has repeatedly rejected adoption of the heightened Twombly

pleading standard, and has not indicated it would be appropriate in any different context.

Moreover, even in federal court the Twombly standard is not a special standard for antitrust cases,

but applies to all types of cases. See Ashcroft v. Iqbal, 

, 684 (2009). This court

therefore has no basis for creating a special standard based upon the nature of this case. Whatever

Twombly actually says about pleading, it is not the law in Vermont, and this court will not import

its standards without explicit direction from our Supreme Court.

       The court will address defendants’ motions under the traditional Vermont pleading

standard: whether “it appears beyond doubt that there exist no facts or circumstances that would

entitle the plaintiff to relief.” Davis v. American Legion, Dept. of Vermont, 

, ¶ 12

(quoting Alger v. Dep’t of Labor & Indus., 

, ¶ 12, 

); see also Prive v.

Vermont Asbestos Grp., 

, ¶ 15, 

(the rule in this state is that when plaintiffs

have not yet had an “opportunity to develop the case” through discovery, all that is required is a

short and plain statement of the claim.) (internal quotation omitted). The court must take factual

allegations in the complaint—though not legal conclusions—as true, and determine whether such

facts could prove plaintiffs’ case. Dernier v. Mortgage Network, Inc., 

, ¶ 23, 

(“We assume that all factual allegations pleaded in the complaint are true, accept as true all




                                                16
reasonable inferences that may be derived from plaintiffs pleadings, and assume that all

contravening assertions in defendant’s pleadings are false.”).

                                       IV.     Price-Fixing Claims

        Plaintiffs allege that defendants engaged in price-fixing in violation of the VCPA, which

prohibits “[u]nfair methods of competition . . . and unfair or deceptive acts or practices in

commerce . . . .” 9 V.S.A. § 2453(a). Only one significant Vermont antitrust decision is on point,

in which the Supreme Court described price-fixing as follows:

                 Proof of a price-fixing conspiracy need not be direct. While
                 particularly true of price-fixing conspiracies, it is well recognized
                 law that any conspiracy can ordinarily only be proved by inferences
                 drawn from relevant and competent circumstantial evidence ,
                 including the conduct of the defendants charged. Parallel business
                 behavior, although not itself illegal, is admissible circumstantial
                 evidence from which the fact finder may infer agreement.

                 [U]niformity of price may be and has been considered some
                 evidence tending to establish an illegal agreement. Price uniformity
                 among competitors does not, of itself, violate the antitrust laws,
                 however. If it is the result of independently reached pricing
                 decisions, the element of “agreement” necessary to establish an
                 illegal price-fixing combination or conspiracy is absent. But it does
                 permit an inference that the defendant’s conduct stemmed from an
                 agreement, tacit or express, rather than from independent business
                 decisions.

State v. Heritage Realty of Vermont, 

, 429–30 (1979) (quotations and citations omitted)

(alteration in original).

        Heritage involved a price-fixing claim against real estate brokers in violation of the

consumer fraud act. In that case, the State’s complaint alleged that during February 1977, most

members of a county board of realtors attended a meeting where they voted to set the commission

for residential real estate sales at seven percent, a change from the previous six 

–28. The trial court granted summary judgment for defendants based on both parties’ affidavits,




                                                  17
but the Supreme Court reversed, holding that plaintiff should have been allowed to further develop

its case because its affidavits indicated that discovery might produce a genuine issue of materia l

fact. 

         By itself, Heritage does not resolve the exact issue here. It involved a summary judgment

motion rather than a motion to dismiss. Further, the allegations of a meeting in the complaint were

more specific than in this case. However, Heritage does provide guidance as to the type of evidence

from which a price fixing conspiracy may be inferred. See 

         Plaintiffs urge the court to decide this motion solely based on Vermont law. However, there

is insufficient guidance in Vermont law to determine the antitrust issues raised in this case. 11 The

court must look to federal substantive antitrust law for guidance in construing the VCPA. See 

(“It is the intent of the Legislature that in construing subsection (a) of this section, the

courts of this State will be guided by the construction of similar terms contained in Section 5(a)(1)

of the Federal Trade Commission Act as from time to time amended by the Federal Trade

Commission and the courts of the United States.”);12 

–30 (relying on

federal antitrust decisions). Therefore, the court will be guided by substantive federal antitrust law



11
  As argued by plaintiffs, a literal reading of Heritage might suggest that an allegation of parallel pricing alone could
be enough to survive a motion to dismiss. See Pls.’ Opp’n at 2, 13–15; 

–28 (“Parallel business
behavior, although not itself illegal, is admissible circumstantial evidence from which the fact finder may infer
agreement. . . . [U]niformity of price may be and has been considered some evidence tending to establish an illegal
agreement.”). However, given the citation in Heritage of federal law to the contrary, as well as the practical result of
allowing any complaint alleging mere parallel business pricing to proceed to discovery, such a literal interpretation
cannot possibly be what the Supreme Court intended.
12
  The statute refers to the Federal Trade Commission Act, 15 U.S.C.A. § 45, which prohibits “[u]nfair methods of
competition . . . and unfair or deceptive acts or practices,” and not the Sherman Act, 15 U.S.C.A. § 1, which prohibits
“[e]very contract, combination . . . , or conspiracy, in restraint of trade.” See Elkins v. Microsoft Corp., 

,
335–37 (2002). However, the U.S. Supreme Court has held that any violation of the Sherman Act also violates the
FTC Act. California Dental Ass’n v. Fed. Trade Comm’n, 

, 762 (1999) (“The FTC Act’s prohibition of
unfair competition and deceptive acts or practices, 15 U.S.C. § 45(a)(1), overlaps the scope of § 1 of the Sherman Act,
15 U.S.C. § 1, aimed at prohibiting restraint of trade . . . .”); Fed. Trade Comm’n v. Indiana Fed’n of Dentists, 

, 454 (1986) (“standard of ‘unfairness’ under the FTC Act . . . encompass[es] . . . practices that violate the
Sherman Act and the other antitrust laws”); Fed. Trade Comm’n v. Cement Inst., 

, 689–95 (1948).



                                                          18
in determining what inferences may be drawn from what facts. Given the low pleading standard,

however, if this case presents a close call, the court will err on the side of denying the motion to

dismiss. Bock, 

, ¶ 4.

                                      (1) Concious Parallelism and Plus Factors

           It is well settled that conscious parallelism is not in itself unlawful. 

–30; Brooke Grp. Ltd. v. Brown & Williamson Tobacco Corp., 

, 227 (1993);

Theatre Enterprises, Inc. v. Paramount Film Distrib. Corp., 

, 540–41 (1954).

Conscious parallelism has been described as a “phenomenon of oligopolistic markets in which

firms ‘might in effect share monopoly power, setting their prices at a profit-maximizing,

supracompetitive level by recognizing their shared economic interests and their interdependence

with respect to price and output decisions.’” White v. R.M. Packer Co., 

, 575 (1st Cir.

2011) (quoting Brooke 

).13 “Each producer may independently decide that it

can maximize its profits by matching one or more other producers’ price, on the hope that the

market will be able to maintain high prices if the producers do not undercut one another.” 

do not argue that mere parallel behavior forms the basis for their claims, however.




13
     The First Circuit has defined an “oligopolistic market” as follows:

                    “An oligopoly market is one in which a few relatively large sellers account for the
                    bulk of the output.” 2B Areeda, Hovenkamp, & Solow, Antitrust Law ¶ 404a, at
                    9 (3d ed. 2007). By contrast to a competitive market, in which no single producer
                    has the power to affect the market price, in an oligopolistic market each of the
                    major sellers can affect the market price by changing its output. By contrast to a
                    monopolized market, “no one firm can unilaterally determine market price by
                    varying its output” because rivals are large enough to affect the market price by
                    doing the same. 

As a result, “the distinctive characteristic of oligopoly
                    is recognized interdependence among the leading firms: the profit-maximizing
                    choice of price and output for one depends on the choices made by others.” 

R.M. Packer Co., 

, 576 n.4 (1st Cir. 2011); see also E.I. du Pont de Nemours & Co. v. F.T.C.,

, 139 (2d Cir. 1984) (“The mere existence of an oligopolistic market structure in which a small group
of manufacturers engage in consciously parallel pricing of an identical product does not violate the antitrust laws.”).


                                                            19
Instead, they claim that the parallel behavior is one of several facts that together provide

circumstantial evidence of an agreement among defendants to fix prices.

         Because parallel pricing behavior may well be the result of independent, rational, and

perfectly legal business conduct, plaintiffs must allege additional “plus factors” which suggest that

the parallel pricing results from a price fixing agreement. See Apex Oil Co. v. DiMauro, 

, 253–54 (2d Cir. 1987) (to infer a conspiracy from parallel pricing, “a plaintiff must show the

existence of additional circumstances, often referred to as ‘plus’ factors, which, when viewed in

conjunction[ ] with the parallel acts, can serve to allow a fact-finder to infer a conspiracy”); In re

Ins. Brokerage Antitrust Litig., 

, 323 (3d Cir. 2010) (“plaintiffs relying on parallel

conduct must allege facts that, if true, would establish at least one ‘plus factor,’ since plus factors

are, by definition, facts that ‘tend[ ] to ensure that courts punish concerted action—an actual

agreement—instead of the unilateral, independent conduct of competitors.’”) (quoting In re Flat

Glass Antitrust Litig., 

, 360 (3d Cir. 2004)) (alteration in original). The plus factors

serve to distinguish between behavior that results from an agreement and behavior that results from

independent business conduct. Flat 

(“plus factors” are “proxies for direct

evidence of an agreement”).14

         Courts have disagreed over what constitutes a “plus factor” and how much weight

particular plus factors should be given. The Third Circuit has observed that “[t]here is no finite

set of such criteria; no exhaustive list exists.” 

same court has broadly categorized



14
   Even under pre-Twombly antitrust law, an allegation of parallel conduct alone has never been enough to defeat a
motion to dismiss. The Twombly dissent acknowledges this. See 

n.6 (Stevens, J.,
dissenting) (“For example, had the amended complaint in this case alleged only parallel conduct, it would not have
made the required ‘showing.’ Similarly, had the pleadings contained only an allegation of agreement, without
specifying the nature or object of that agreement, they would have been susceptible to the charge that they did not
provide sufficient notice that the defendants may answer intelligently. Omissions of that sort instance the type of
‘bareness’ with which the Federal Rules are concerned.”) (citation omitted) (emphasis in original). There is no reason
to suppose the Vermont Supreme Court would find a mere allegation of parallel conduct sufficient.


                                                         20
plus factors into three distinct groups: “(1) evidence that the defendant had a motive to enter into

a price fixing conspiracy; (2) evidence that the defendant acted contrary to its interests; and (3)

“evidence implying a traditional conspiracy.” 

two factors can be problematic, the Third Circuit explained, because they “largely

restate the phenomenon of interdependence.” 

are still “important to a court's analysis,

because their existence tends to eliminate the possibility of mistaking the workings of a

competitive market . . . with interdependent, supracompetitive pricing.” 

see also 

n.12 (“Neither factor is strictly necessary . . . nor sufficient to conclude that sufficient proof

of an agreement exists to preclude summary judgment, but it is relevant and courts should as a

general matter consider it.”) (internal quotations omitted). With respect to the first factor, evidence

that the defendant “had a motive to enter into a price fixing conspiracy” means “evidence that the

industry is conducive to oligopolistic price fixing, either interdependently or through a more

express form of collusion. In other words, it is ‘evidence that the structure of the market was such

as to make secret price fixing feasible.’” 

(quoting In re High Fructose Corn Syrup

Antitrust Litigation, 

, 655 (7th Cir.2002)). As to the second factor, evidence that the

defendant “acted contrary to its interests” means “evidence of conduct that would be irrational

assuming that the defendant operated in a competitive market.” 

–61.15

         The Third Circuit considered the third factor most important, and stated that it would

“generally be non-economic evidence ‘that there was an actual, manifest agreement not to

compete.” 

(quoting High Fructose Corn 

). “That evidence may




15
  “In a competitive industry, for example, a firm would cut its price with the hope of increasing its market share if its
competitors were setting prices above marginal costs. Put differently, in analyzing this factor a court looks to ‘evidence
that the market behaved in a noncompetitive manner.’” Flat 

(quoting High Fructose Corn

).



                                                           21
involve ‘customary indications of traditional conspiracy,’ or ‘proof that the defendants got together

and exchanged assurances of common action or otherwise adopted a common plan even though

no meetings, conversations, or exchanged documents are shown.’” 

E. Areeda

& Herbert Hovenkamp, Antitrust Law ¶ 1434b, at 243 (2nd ed.2000)); see also In re Ins. Brokerage

Antitrust Litig., 

, 321–22 (3d Cir. 2010).16

                                        (2) Plus Factors Alleged by Plaintiffs

         Plaintiffs have alleged parallel pricing and a number of “plus factors” from which, they

argue, one can infer a conspiracy among defendants to fix retail and wholesale gasoline prices in

the class area. For purposes of organization, the court has categorized the allegations into three




16
  Courts and commentators have organized and described “plus factors” in numerous ways. For example, one
commentator has outlined the “chief” plus factors as follows:

                  • Actions contrary to each defendant’s self-interest unless pursued as part of a
                  collective plan.
                  • Phenomena that can be explained rationally only as the result of concerted
                  action.
                  • Evidence that the defendants created the opportunity for regular communication.
                  • Industry performance data, such as extraordinary profits, that suggest successful
                  coordination.
                  • The absence of a plausible, legitimate business rationale for suspicious conduct
                  (such as certain communications with rivals) or the presentation of contrived
                  rationales for certain conduct.

W. Kovacic, et. al., Plus Factors and Agreement in Antitrust Law, 

. Rev. 393, 405–06 (2011). Another
commentator has written that the plus factor “most often considered” by courts in determining whether parallel
behavior is the result of an agreement is the “business-justifications test.” M. Vaska, Conscious Parallelism and Price
Fixing: Defining the Boundary, 52 U. Chi. L. Rev. 508, 509 (1985). Under that test, “a price-fixing agreement may
be inferred from parallel conduct if firms cannot show legitimate independent business reasons for engaging in such
practices.” 

In re Travel Agent Comm’n Antitrust Litig., 

, 907 (6th Cir. 2009) (“We concluded
the following ‘plus factors’ were important when evaluating circumstantial evidence of concerted action: ‘(1) whether
the defendants' actions, if taken independently, would be contrary to their economic self-interest; (2) whether
defendants have been uniform in their actions; (3) whether defendants have exchanged or have had the opportunity to
exchange information relative to the alleged conspiracy; and (4) whether defendants have a common motive to
conspire. Ordinarily, an affirmative answer to the first of these factors will consistently tend to exclude the likelihood
of independent conduct.’”) (quoting Re/Max Int’l, Inc. v. Realty One, Inc., 

, 1009 (6th Cir. 1999)); E.I.
du Pont de Nemours & Co. v. F.T.C., 

, 140 n.10 (2d Cir. 1984) (“The ‘plus factor’ may be conduct that
is contrary to the defendants’ independent self-interest, the presence or absence of a strong motive on a defendants’
part to enter an alleged conspiracy, or the artificial standardization of products . . . .”) (internal citations omitted).


                                                           22
broad groups based on how they are presented in the complaint: (1) product/market structure, (2)

parallel pricing and behavior, and (3) barriers to entry.

                         i.   Allegations Concerning Product/Market Structure

       As to the product, plaintiffs allege that unleaded gasoline is a necessary commodity, and

no other fuel type is a substitute for such gasoline used in automobiles. See In re High Fructose

Corn Syrup Antitrust Litig., 

, 657 (7th Cir. 2002) (Posner, J.) (“no close substitutes”

for high fructose corn syrup). The demand for gasoline is highly inelastic and thus changes little

in response to price changes. See White v. R.M. Packer Co., 

, 582 (1st Cir. 2011)

(“High barriers to entry and inelastic demand are two hallmarks of oligopolistic markets

susceptible to successful parallel pricing practices, but neither helps to distinguish between

agreement and mere conscious parallelism as the root cause of those practices.”).

       Regarding the geographic market, plaintiffs allege that gas stations and drivers that

purchase gas (either through wholesale or retail) from defendants in the class area cannot

reasonably and cost-effectively turn to areas of supply outside the class area. The cost and time of

seeking gas from outside the class area outweighs any benefit from lower prices.

       Plaintiffs also allege a highly concentrated market, where defendants have a 67 percent

market share of the wholesale market, and own or control at least 64 percent of all class area gas

stations. Compl. ¶ 6. Because of their control of the wholesale market, plaintiffs allege defendants

also control retail pricing at independent stations. 

have found that a highly

concentrated market makes price fixing more feasible. See In re Text Messaging Antitrust Litig. ,

, 628 (7th Cir. 2010) (four defendants controlled 90 percent of text messaging

market); Starr v. Sony BMG Music Entm’t, 

, 323–24 (2d Cir. 2010) (defendants

controlled over 80% of digital music sold to end purchasers in U.S.); see also 

Phillip




                                                 23
R. Areeda and Herbert Hovenkamp, Antitrust Law § 1431a (2d ed. 2003) (“[E]mpirical studies

considering many industries have suggested that noncompetitive pricing [that may be the result of

price coordination] is likely to appear when the four leading firms account for some 50 to 80

percent of the market.”) (alterations in original); High Fructose Corn 

(five

defendants accounted for 90 percent of product sales).

         However, a concentrated market, by itself, could also demonstrate mere parallel conduct

in an oligopolistic market. As one court has observed:

                  A firm in a concentrated industry typically has reason to decide
                  (individually) to copy an industry leader. After all, a higher-than-
                  leader’s price might lead a customer to buy elsewhere, while a
                  lower-than-leader’s price might simply lead competitors to match
                  the lower price, reducing profits for all. One does not need an
                  agreement to bring about this kind of follow-the-leader effect in a
                  concentrated industry.

Reserve Supply Corp. v. Owens–Corning Fiberglas Corp., 

, 53 (7th Cir.1992); see also

In re Travel Agent Comm’n Antitrust Litig., 

, 910 (6th Cir. 2009) (holding that each

defendant’s decision to match a new commission cut was arguably a “reasoned, prudent business

decision”). Plaintiffs’ allegations here about the product and the market structure make price-fixing

feasible in the class market, but by themselves are not enough to defeat the motion to dismiss.                    17


                          ii.    Allegations Concerning Parallel Pricing and Behavior

         Plaintiffs allege that retail prices in the class area are inexplicably and persistently higher

than elsewhere in the State, such as Middlebury and Rutland, and other areas of the northeast and



17
  Champlain Oil also points out that defendants are only four of the six major gas wholesalers in the class area. The
complaint does not explain why the other two wholesalers did not take market share by pricing at allegedly competitive
levels. This, Champlain Oil contends, demonstrates that higher prices are more likely explained by conscious
parallelism rather than a conspiracy to fix prices. However, this fact does not necessarily negate an inference of a
price-fixing agreement. It is entirely possible that the two non-party wholesalers and/or those stations they supply
independently imitated defendants’ allegedly fixed prices. In any event, as the court has already stated, the fact of a
concentrated market does not by itself suggest a price-fixing conspiracy.



                                                          24
the United States. 18 These prices have allegedly been nearly identical and moved in lockstep

fashion among defendants. Further, they allege that defendants have earned “abnormal and

exorbitant” gross wholesale and retail profits, often in the top 10 of 450 gasoline markets measured

in the United States. Plaintiffs allege that no rational explanation has been offered for such high

prices and profits.19

         Of course, parallel pricing alone is insufficient to infer a price fixing conspiracy. Plaintiffs

allege additional facts, some of which move them closer to a context that suggests a conspiracy.

First, they allege that retail prices have not been logically related to terminal rack costs. According

to plaintiffs, prices have repeatedly increased or remained unchanged in times of declining cost,

increased when costs have not changed, and decreased at a disproportionately smaller amount and

pace than the decline in costs. See Starr v. Sony BMG Music Entm’t, 

, 323–24 (2d

Cir. 2010) (allegation that none of defendants reduced prices for Internet music despite dramatic



18
   Defendants argue that plaintiffs have not alleged that Rutland is an appropriate comparable market. Though
plaintiffs’ attorney stated at oral argument that both the class area and Rutland County are oligopolistic markets and
insisted that plaintiffs had made that specific allegation in their complaint, see Transcript at 38:4–19, the complaint
does not contain such a specific allegation. The closest the complaint comes to alleging that Rutland is a comparable
market is in Paragraph 64 (“Profit margins realized by Defendants in the Class Area exceeded the margins realized by
comparable gas stations outside of the Class Area within comparative markets in the State of Vermont and throughout
the United States.”), Paragraph 68 (“There is little justification for the price differential for gasoline between the Class
Area and the City of Rutland. Major costs . . . vary little or not at all. To the extent some costs in Rutland are lower .
. . , those difference cannot explain the price differential.) and in Paragraph 70 (“There is no competitive market
explanation for the magnitude and substantial duration of the retail price differentials between Chittenden and Rutland
during periods of declining costs.”). However, this does not doom plaintiffs’ complaint. There is a clear implication
in the complaint of an apples-to-apples comparison. Moreover, the complaint alleges that the class area has higher
prices than not only Rutland, but other areas of Vermont, the Northeast, and the country.
19
  With regard to parallel pricing behavior, defendants argue that the FTC document relied upon by plaintiffs in their
complaint undercuts their allegations. Specifically, R.L. Vallee argues that the FTC data does not show excessive
pricing or profit-taking, but instead shows that prices were within the predicted range for all but a few weeks. See Ex.
A to R.L.’s Vallee’s Reply. Indeed, the FTC data purportedly shows that from the period between January 2010 and
June 2012, gas prices in Burlington, Vermont were within the “expected range” except for the last four weeks. See 

is not the only allegation of parallel pricing behavior offered by plaintiffs. They allege unreasonably
high retail prices, wholesale prices, and profits throughout the class period. Presumably, they will offer evidence
supporting those allegations during discovery. The FTC chart covers only part of the class period. Furthermore, it is
unclear from the chart exactly how the FTC determined the “expected range.” The FTC chart does not meaningfully
undermine plaintiffs’ allegations.



                                                            25
cost reductions, taken together with other allegations, placed parallel conduct in context that

suggested price-fixing agreement); In re Text Messaging Antitrust Litig., 

, 628 (7th

Cir. 2010) (Posner, J.) (complaint alleged that “in the face of steeply falling costs, the defendants

increased their prices”).20

         Second, defendants have allegedly maintained their wholesale and retail market shares

despite numerous opportunities to compete on price to acquire market share. Evidence of stable

market shares suggests anticompetitive conduct, because such stability “is just what one would

expect of a group of sellers who are all charging the same prices for a uniform product and trying

to keep everyone happy by maintaining the relative sales positions of the group’s members.” High

Fructose Corn Syrup Antitrust 

(7th Cir. 2002); see also White v. R.M.

Packer Co., 

, 582 (“stable market shares over time may suggest in some factual

contexts that the firms ‘eliminated competition[] among themselves”) (quoting R. Posner, Antitrust

Law 79 (2d ed. 2001)).

         Third, and perhaps most damning to defendants, is the allegation that they temporarily

reduced their prices and profit margins before August 2012 and January 2013 legislative hearings

investigating high gas prices in northwestern Vermont, despite rising costs at the time. If true, as

the court must assume for purposes of this motion, the timing is highly suspicious and suggests an

agreement to temporarily reduce prices in order to mask high prices charged at other times. The

fact that defendants did so despite rising costs—again, as the court must assume to be true—further

suggests a conspiracy. See 

–24; Text 

.




20
  As Judge Posner further explained, “[t]his is anomalous behavior because falling costs increase a seller’s profit
margin at the existing price, motivating him, in the absence of agreement, to red uce his price slightly in order to take
business from his competitors, and certainly not to increase his price.” Text 

.


                                                          26
       Plaintiffs also allege that defendants had the opportunity to meet and conspire through

membership in the Vermont Petroleum Association, which held regular trade association meetings

and an annual golf tournament. The court deems this to be of limited persuasive value in

determining whether a conspiracy can be inferred from the allegations. Virtually any profession

like that of defendants has a trade association which holds meetings and other events. Mere

membership in the Vermont Petroleum Association demonstrates nothing. As other cases have

demonstrated, something more—like specific dates and topics covered at meetings—is generally

necessary for trade association membership or communications among defendants to be a plus

factor. Compare Text 

(complaint sufficiently pled price-fixing where

it alleged that, among other allegations, “defendants belonged to a trade association and exchanged

price information directly at association meetings” and “met with each other in an elite ‘leadership

council’ within the association . . . [whose] stated mission was to urge its members to substitute

‘co-opetition’ for competition”), Apex Oil Co. v. DiMauro, 

, 255–58 (2d Cir. 1987)

(reasonable inference could be drawn that notebook entries memorializing telephone conversations

between defendants evidenced an agreement), and In re Static Random Access Memory (SRAM)

Antitrust Litig., 

, 903 (N.D. Cal. 2008) (where complaint cited specific email

communications between defendants that suggested conspiracy, court noted that “allegations

regarding [d]efendants’ participation in various trade organizations . . . cannot alone support

Plaintiffs’ claims, but such participation demonstrates how and when [d]efendants had

opportunities to exchange information or make agreements”), with Mayor and City Council of

Baltimore v. Citigroup, Inc., 

, 139–40 (2d Cir. 2013) (rejecting plaintiffs’ allegation

of “specific communications” between defendants where most communications alleged were

internal to individual defendants, and the only two actual communications between competitors




                                                27
were “vague references to isolated discussions among only three defendants”), and In re Graphics

Processing Units Antitrust Litig., 

, 1023 (N.D. Cal. 2007) (“Attendance at

industry trade shows and events is presumed legitimate and is not a basis from which to infer a

conspiracy, without more.”) (citing In re Citric Acid Litig., 

, 1098 (9th Cir.1999)).

         That defendants collectively had one agent who represented them at legislative hearings is

similarly unavailing. That a group of businesses would have common legislative interests does not

support any untoward conspiracy.

         One additional allegation offers further support for the inference of a conspiracy: that of

defendants’ “pretextual” or “plainly false” explanations for pricing behavior, consisting generally

of testimony presented at legislative hearings conducted to investigate high gas prices in

northwestern Vermont. 21 According to the complaint, defendants claimed they did not make a

profit, or that they lost money on gasoline for substantial periods within the class period. Compl.

¶¶ 7, 75, 80–81. Defendants allegedly tried to confuse the issue at the legislative hearings by

interjecting: (1) factors that apply throughout Vermont; (2) irrelevant comparisons between

Vermont and other states; and (3) other “nonsensical red-herrings” that could not have explained

the high price of gasoline within the class area. 

Plaintiffs allege this was a “blatant attempt

at misdirection” to conceal ongoing price coordination. 

         Defendants proffered several justifications for high gas prices at the hearings, but plaintiffs

allege none of them explain the high price of unleaded gasoline in the class area, and only further

demonstrate that defendants engaged in a price-fixing conspiracy. 

80–87. The lack of an



21
  R.L. Vallee argues that whether the legislative testimony is admissible as evidence of intent to conceal a conspiracy
depends upon some initial pleading of facts to show the testimony’s falsity, which it claims plaintiffs have not done.
See R.L. Vallee’s Reply at 18. However, plaintiffs have pled that, for various reasons, defendants’ testimony does not
provide an explanation for the high gas prices, which was the purpose of the legislative hearings. See Compl. ¶¶ 80–
87. Additionally, plaintiffs’ pleading of excessive profits undermines defendants’ statement that they were losing
money. 

The court deems that sufficient.


                                                          28
explanation for high gas prices is itself significant, and the lack of a rational explanation given the

opportunity to present one even more so. In one federal case, the Second Circuit held that plaintiffs

failed to plead additional facts beyond mere parallel conduct to plausibly suggest an agreement

where defendants’ “en masse flight from a collapsing market in which they had significant

downside exposure[ ]made perfect business sense. . . . [A]bandoning bad investments was not just

a rational business decision, but the only rational business decision.” Mayor of 

(italics and emphasis in original). Here, in contrast, there is no clear rational

explanation for the high gas prices that would counter the inference of a price-fixing agreement as

opposed to rational, legitimate, and independent parallel conduct. 22

                                 iii.    Allegations Concerning Barriers to Entry

         Plaintiffs allege several so-called “barriers to entry” which, they claim, also suggest a price-

fixing conspiracy. Most of these allegations, however, add nothing to their argument. They make

vague reference to a need to obtain environmental permits, legal limitations on the number of gas

stations in the class area, the cost and complexity of gasoline storage and operation of stations, and

defendants’ “threats” against anyone who attempts to open a competing gas station. However, they




22
   The court emphasizes that it is not placing a burden on defendants to produce an explanation for parallel pricing at
the pleading stage. Rather, the court merely recognizes, as other courts have, that the existence or absence of an
obvious alternative explanation for the parallelism that suggests independent conduct rather than an illegal agreement
is an important factor. See In re Ins. Brokerage Antitrust Litig., 

, 322–23 (3d Cir. 2010) (quoting

) (“allegations of conspiracy are deficient if there are ‘obvious alternative explanation[s]’
for the facts alleged”); In re Travel Agent Comm’n Antitrust Litig. (“Tam Travel”), 

, 908–09 (6th Cir.
2009) (airlines’ historical failures at independently cutting commission rates without prior agreements with other
airlines did not suggest collusion, because defendants offered a “reasonable, alternative explanation”: each airline
could have reasonably calculated that a successful commission cut would yield greater net revenue); LaFlamme v.
Societe Air France, 

, 151–52 (E.D.N.Y. 2010) (“rapidly rising jet fuel prices” provided an obvious
independent explanation for the alleged parallel behavior); In re Graphics Processing Units Antitrust Litigation, 

, 1022 (N.D. Cal. 2007) (allegations of parallel conduct were equally consistent with conspiracy and
lawful conduct where certain characteristic of chip industry provided “independent innocent explanation” for
conduct); Cf. Interstate Circuit v. United States, 

, 224 (1939) (defendant’s letter provided evidence of
conspiracy, particularly because defendants could offer no alternative reason for parallel pricing demands).



                                                         29
include no additional detail or facts explaining the nature of these allegations or how these operate

to prevent entry into the market. Without more context, those allegations are simply insufficient.

         Other alleged barriers to entry are more fact-specific, but do not suggest a price-fixing

conspiracy in the class area. For example, plaintiffs allege that defendants have “frequently”

acquired real property on which they imposed deed restrictions barring future use as gas stations

to further limit competition or dilution of the market share. 

However, the only examples

are actions solely by R.L. Vallee in Plainfield and St. Johnsbury, outside of the class area. 

54. It is difficult to see how those particular activities, if true, support an inference of a

conspiracy to fix prices between the four defendants in the class area.

         Another allegation is that defendants misused Vermont environmental laws to obstruct the

entry of low-cost gasoline providers and to extract unreasonable covenants that prevent or limit

competition. 

Only two examples are provided. First, in 2010 R.L. Vallee opposed

Walmart’s bid to build a discount store in Franklin County until it was written into the permit that

“there shall be no sale of gasoline for automobiles.” 

Second, R.L. Vallee has partnered

with Wesco since 2007 to oppose Costco’s plans to build a filling station in Colchester, Vermont.

However, it is perfectly reasonable for a business to try independently to discourage

competitors; such conduct does not necessarily show a conspiracy. Furthermore, the Walmart

opposition was action taken solely by R.L. Vallee, while the Costco opposition involved only two

of the four defendants. The court deems these allegations to be of very limited persuasive value. 23

                                                       (3) Analysis

         In determining whether plaintiffs have adequately pled facts from which a price-fixing

conspiracy could be inferred, the court must examine the allegations in the complaint as a whole.


23
  Plaintiffs allege one other example involving a new filling station in Plainfield, outside of the class area. 

Because it is outside of the class area, it has no relevance to an alleged price-fixing conspiracy inside the class area.


                                                          30
Plaintiffs have alleged parallel pricing, as well as product and market structure factors

demonstrating that the class area was conducive to a price-fixing conspiracy. Those allegations

alone are insufficient because they merely demonstrate an oligopolistic market. However,

plaintiffs also allege certain plus factors which suggest that the parallel conduct might have

resulted from an agreement and is not merely consistent with independent action. The discrepancy

between retail prices and terminal rack costs, the temporary price reductions before the legislative

hearings at a time of rising costs, and the lack of a rational explanation for the pricing behavior at

the legislative hearings, when considered together with the parallel pricing and market structure,

suggest a price-fixing agreement.

        Defendants claim that plaintiffs must identify the specific time, place, or person related to

the conspiracy allegation. This is incorrect, even under the post-Twombly federal pleading

standard. The Second Circuit has interpreted Twombly as not requiring such specificity where the

claim of agreement rests on parallel conduct. See 

(citing 

n.10); see also Allen v. Dairy Farmers of Am., Inc., 

, 333 n.2 (D. Vt.

2010). Instead, allegations of parallel conduct “must be placed in a context that raises a suggestion

of a preceding agreement, not merely parallel conduct that could just as well be independent

action.” 

(citing 

). Examples of a parallel conduct

allegation that would suffice under this standard include “parallel behavior that would probably

not result from chance, coincidence, independent responses to common stimuli, or mere

interdependence unaided by an advance understanding among the parties.” 

at

556 n.4).

       Defendants, and particularly R.L. Vallee, also repeatedly point to footnote six in Vallee’s

December 11th reply memorandum, where Vallee cites nine federal antitrust cases that were,




                                                 31
according to Vallee, “dismissed at the pleading stage because they suffered from the same

deficiency as Plaintiffs’ Complaint: they failed to allege facts supporting the inference that an

unlawful agreement among competitors to fix prices, rather than legitimate business behavior, was

responsible for parallel market activity.” R.L. Vallee’s Reply at 9 n.6 (citing SD3, LLC v. Black

& Decker (U.S.) Inc., 

(4th Cir. 2015); Mayor of Baltimore, 

; Insurance

Brokerage, 

; In re Travel Agent Comm’n Antitrust Litig. (“Tam Travel”), 

(6th Cir. 2009); Hu v. Huey, 325 Fed. Appx. 436 (7th Cir. 2009); Allen v. Dairy Farmers of

America, Inc., 

(D. Vt. 2010); LaFlamme v. Societe Air France, 

136 (E.D.N.Y. 2010); In re Static Random Access Memory Antitrust Litigation, 

(N.D. Cal. 2008); In re Graphics Processing Units Antitrust Litigation, 

(N.D. Cal. 2007)).

       While those cases provide guidance as to what allegations can be used as “plus factors”

from which an inference of a conspiracy can be drawn, they were all decided under the federal,

post-Twombly pleading standard. Moreover, the cases are inconsistent and impossible to

harmonize. In any case, each is fact-specific and provides no broad guidance here. For instance,

while some of the cited cases observe that meetings between defendants must be alleged with some

level of specificity in order to suggest a conspiracy, see 

–30; Mayor of

–40; Tam 

–11; LaFlamme, 

at

147–48, an allegation of meetings is not strictly necessary to survive a 12(b)(6) motion, nor is it

even necessary to allege a specific time or place of the conspiracy. See 

.

       Defendants also point to pre-Twombly federal cases in an attempt to show that even under

our lower pleading standard, plaintiffs have failed to adequately allege a conspiracy to fix prices.

In Estate Construction. Co. v. Miller & Smith Holding Co., the Fourth Circuit held that dismissal




                                                32
of an antritrust conspiracy complaint was appropriate where the plaintiffs failed to provide “any

factual support” for their allegations of a conspiracy. 

, 221 (4th Cir. 1994). The

complaint there, however, was entirely conclusory, stating no facts and only legal conclusions.

Id.24

           Lombard’s, Inc. v. Prince Mfg., Inc., 

, 975 (11th Cir. 1985) also involved an

entirely conclusory complaint. Though notice pleading was all that was required for a valid

antitrust complaint in that case, “[n]evertheless, enough data must be pleaded so that each element

of the alleged antitrust violation can be properly identified.” 

The

complaint in Lombard’s stated only a conclusory allegation that there was a conspiracy in violation

of the Sherman Act, and Prince was the only defendant named. 

only are no facts

alleged to demonstrate the conspiracy but the specific participants of the conspiracy are not even

identified. Such pleading is inadequate to give the defendant fair notice of Lombard’s claim.” Id.25


24
     The complaint provided:

                    Providence combined and/or conspired with the Miller & Smith defendants,
                    Gordon V. Smith, Calloway, Conner, Jack B. Conner Associates, Inc. and others
                    to restrain trade unreasonably in the real estate development business in the
                    Washington, D.C. metropolitan area by combining and/or conspiring to deprive
                    the Pattersons of The Property, cause The Property to be sold in foreclosure at a
                    price that would leave the Pattersons with no assets, and otherwise to drive them
                    and Estate Construction out of the real estate development business in the
                    Washington, D.C. metropolitan area. The combination and/or conspiracy
                    produced adverse, anticompetitive effects within the relevant prod uct and
                    geographic market. The objects and conduct of the combination and/or conspiracy
                    were illegal.

Estate 

n.15.
25
     The relevant paragraphs of the complaint in Lombard’s provide:

                    10. Upon information and belief, PRINCE, together with PRINCE dealers and
                    others at this time unknown to LOMBARD’S, conspired to maintain the resale
                    prices of the “Prince Precision Graphite,” the “Prince J/R Pro” and the “Prince
                    Magnesium Pro” tennis racquets and terminate price-cutters. In furtherance of that
                    conspiracy, and in response to dealer complaints, PRINCE has prevented
                    LOMBARD’S from making wholesale and mail order sales of the three (3) new
                    tennis racquets by refusing to fill LOMBARD’S purchase orders for these new
                    tennis racquets.


                                                           33
        Defendants also point to In re Currency Conversion Fee Antitrust Litigation as an example

of a sufficiently pled antitrust complaint under the pre-Twombly federal pleading standard. In that

case, though the parallel conduct by MasterCard and VISA in establishing currency conversion

fees was not enough by itself to infer an antitrust conspiracy, plaintiffs also alleged plus factors

which prevented dismissal. 

, 418–19 (S.D.N.Y. 2003). Those plus factors

included allegations that certain fees were against the defendants’ economic self-interest absent

collusion, a dual governance structure facilitated the conspiracy, and the actions of one

organization’s board were disseminated to members of both organizations. 

of the

associations is a fishbowl and officers and board members are aware of what the other is doing,

much more so than in the normal corporate environment.”) 

of a sufficiently

pled antitrust complaint is In re Mid-Atlantic Toyota Antitrust Litigation, 

, 1280–

81 (D. Md. 1981), where the plaintiff “carefully documented a series of meetings . . . includ[ing]

the persons in attendance . . . , the topics discussed, and the impact these meetings had on the

alleged conspiracy . . . .”

        Defendants are correct that plaintiffs’ “plus factor” allegations in this case are not as strong

as those in Currency Conversion or Mid-Atlantic. On the other hand, plaintiffs’ allegations are not

as “bare bones” as those offered in Estate Construction and Lombard’s. Unlike Lombard’s, which

failed to specify the participants in the conspiracy, plaintiffs here specify the four named




                 11. Upon information and belief, PRINCE, together and with PRINCE dealers
                 and others at this time unknown to LOMBARD’S, have attempted, and are now
                 attempting, to prevent LOMBARD’S from making wholesale and mail order sales
                 of the “Prince Precision Graphite,” the “Prince J/R Pro” and the “Prince
                 Magnesium Pro” tennis racquets not to achieve any legitimate business objectives,
                 but for the sole purpose of unlawfully preventing LOMBARD’S from engaging
                 in intrabrand price competition with other dealers in those same tennis racquets.

.


                                                       34
defendants as the participants. Furthermore, unlike the Estate Construction complaint which

“lack[ed] completely any allegations of communications, meetings, or other means through which

one might infer the existence of a conspiracy,” plaintiffs here allege price increases at a time of

declining costs, price changes immediately before legislative hearings to investigate high gas

prices, and the lack of a rational explanation for the high gas prices. Considering those factors

along with the allegations of parallel pricing behavior and a market structure and product that make

price-fixing feasible, plaintiffs’ complaint offers something more than a mere conclusory

allegation of a price-fixing conspiracy.

         In essence, defendants argue that because there may well be a perfectly legitimate

explanation for all of the facts alleged by plaintiffs, the complaint is insufficient. The court

concludes that this is not the law at the pleading stage. Instead, if the allegations could also be

explained by a tacit agreement to fix prices, the complaint is sufficient. See, e.g., 

(evidence compels neither inference of price-fixing nor “an inference of no agreement”);

(“[I]t is not our task at the motion-to-dismiss stage to determine whether a

lawful alternative explanation appear[s] more likely from the facts of the complaint. Post-

Twombly appellate courts have often been called upon to correct district courts that mistakenly

engaged in this sort of premature weighing exercise in antitrust cases.”) (internal citation omitted);

(allegations adequate at pleading stage if they “suggest” that an agreement

was made).26

         This is a motion to dismiss, based solely upon allegations. It could be that no evidence

exists that reasonably supports the allegations. It is possible that discovery will turn up insufficient



26
  As one treatise notes, Twombly cannot mean “that the plaintiff must disprove all nonconspiratorial explanations for
the defendants’ conduct,” even at the summary judgment stage. P. Areeda & H. Hovenkamp, Fundamentals of
Antitrust Law § 14.03[B] at 14-25 (4th ed. 2015 supp.).


                                                         35
evidence to support plaintiffs’ claims, and the case will not survive summary judgment. However,

that is not the question to be resolved here. 

(Newman, J., concurring) (“Even

in those contexts in which an allegation of parallel conduct will not suffice to take an antitrust

plaintiff’s case to the jury, it will sometimes suffice to overcome a motion to dismiss and permit

some discovery . . . .”). Plaintiffs’ allegations of parallel conduct and plus factors are enough to

survive a 12(b)(6) motion to dismiss under Vermont’s “exceedingly low” pleading standard.

                                       V.      Unjust Enrichment

       Unjust enrichment rests on the principle that one should “not be allowed to enrich himself

unjustly at the expense of another.” Shattuck v. Peck, 

, ¶ 11, 

. “[T]he inquiry

is whether, in light of the totality of circumstances, it is against equity and good conscience to

allow [a party] to retain what is sought to be recovered. . . . It must be a realistic determination

based on a broad view of the human setting involved.” 

v. Weed, 

,

¶ 17, 

). Thus, unjust enrichment is present only if: “(1) a benefit was conferred on

defendant; (2) defendant accepted the benefit; and (3) defendant retained the benefit under such

circumstances that it would be inequitable for defendant not to compensate plaintiff for its value.”

Kellogg v. Shushereba, 

, ¶ 31, 

, 463 (quoting Center v. Mad River Corp.,

, 412 (1989)) (alterations in original).

       Plaintiffs allege that during the class period, defendants’ price-fixing conspiracy resulted

in plaintiffs paying artificially inflated prices for unleaded gasoline, and that defendants have

retained the benefit of those excess profits. See Compl. ¶¶ 4, 7, 10, 16, 34, 56–75, 106–108.

Defendants contend that plaintiffs’ unjust enrichment claim fails because there is no allegation that

defendants did not “compensate” or “pay” plaintiffs for the benefit they received, “i.e., that

[d]efendants did not give [p]laintiffs gasoline in exchange for money.” R.L. Vallee’s Mot. to




                                                 36
Dismiss at 31. To support this argument, defendants quote Ray Reilly’s Tire Mart, Inc. v. F.P.

Elnicki, Inc., 

, 39 (1987), which states that “[t]he retention of a benefit is not unjust

where defendants have paid for it.”

       The issue here, however, is whether the amount plaintiffs paid for the product was

unreasonably high and thus whether defendants obtained a greater benefit than the value of the

product. See, e.g., In re Processed Egg Products Antitrust Litig., 

, 927 (E.D.

Pa. 2012) (plaintiffs sufficiently alleged that purchasers had conferred benefit on defendants since

any purchase of eggs at artificially inflated prices stemming from price-fixing conspiracy “allowed

[d]efendants to obtain the benefit of ‘increased revenues and profits from their sales of eggs’”); In

re TFT-LCD (Flat Panel) Antitrust Litig., 

, 1190 (N.D. Cal. 2009) (plaintiffs

alleged that they conferred benefit on defendants by paying higher prices for LCD products than

they would have in absence of alleged price-fixing conspiracy).

       Defendants also claim that the unjust enrichment claim fails because plaintiffs have failed

to adequately allege a price-fixing conspiracy. In light of the court’s resolution of the price-fixing

claims above, the court rejects defendants’ argument. See generally D. Karon, Undoing the

Otherwise Perfect Crime - Applying Unjust Enrichment to Consumer Price-Fixing Claims, 

. Rev. 395, 431 (2005) (arguing that unjust enrichment always has applied to situations

like consumer price-fixing claims).

       However, the statute of limitations issue addressed above applies equally to the unjust

enrichment claim. See Stankiewicz v. Estate of LaRose, 

, 456 (1989) (six-year statute

of limitations under 12 V.S.A. § 511 applies to unjust enrichment claim). Plaintiffs may not

proceed on any unjust enrichment which may have occurred before June 22, 2009.

                                                 Order




                                                 37
       Defendants’ motions to dismiss are granted in part and denied in part. The motions are

granted on statute of limitations grounds with respect to the period before June 22, 2009. They are

denied in all other respects. The parties are directed to submit a proposed discovery schedule by

May 24.

Dated at Burlington this 7th day of May, 2016.



                                                            _____________________________
                                                            Helen M. Toor
                                                            Superior Court Judge




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