Case 2:07-md KHV-JPO Document 3183 Filed 01/09/12 Page 1 of 24

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1 Case 2:07-md KHV-JPO Document 3183 Filed 01/09/12 Page 1 of 24 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS ) IN RE: MOTOR FUEL TEMPERATURE ) MDL No SALES PRACTICES LITIGATION ) Case No. 07-MD-1840-KHV ) ) This Document Relates To: ) ) Wilson, et al. v. Ampride, et al. ) Case No. 06-cv KHV-JPO ) ) American Fiber, et al. v. BP Corp., et al. ) Case No. 07-cv KHV-JPO ) ) ) DEFENDANTS REPLY TO PLAINTIFFS RESPONSE IN OPPOSITION TO DEFENDANTS MOTION FOR SUMMARY JUDGMENT ON THE GROUNDS THAT PLAINTIFFS LACK STANDING v6

2 Case 2:07-md KHV-JPO Document 3183 Filed 01/09/12 Page 2 of 24 TABLE OF CONTENTS I. INTRODUCTION... 1 II. Page DEFENDANTS REPLY TO PLAINTIFFS RESPONSE TO DEFENDANTS STATEMENT OF FACTS... 3 III. DEFENDANTS RESPONSE TO PLAINTIFFS STATEMENT OF FACTS... 4 IV. ARGUMENT AND AUTHORITIES... 9 A. Mr. Wilson Has Failed to Identify a Single Purchase of Motor Fuel For His Personal Use Made Prior to This Lawsuit and Thus Has Not Established Any Injury-In-Fact Traceable to Any Defendant... 9 B. Mr. Wilson s New Evidence and Other Legal Arguments Also Fail to Confer Standing Plaintiffs new evidence of post-lawsuit purchases, even if properly before the Court, does not confer standing Being a guarantor of payment for Wonderland s credit cards does not confer standing to assert claims for fuel purchases made by Wonderland with those cards Wilson s vague assertion that he intends to purchase fuel from Defendants this year is insufficient to show certainly impending injury traceable to any Defendant C. Wonderland Lacks Standing to Bring Claims Against Defendant Circle K V. CONCLUSION v6 i

3 Case 2:07-md KHV-JPO Document 3183 Filed 01/09/12 Page 3 of 24 TABLE OF AUTHORITIES FEDERAL CASES Page(s) Allen v. Wright, 468 U.S. 737 (1984)...18 Bd. of Cnty. Comm rs of Sweetwater Cnty. v. Geringer, 297 F.3d 1108 (10th Cir. 2002)...18 Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 (2004)...18 Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167 (2000)...9 Kestrel Holdings I, L.L.C. v. Learjet Inc., 316 F. Supp. 2d 1071 (D. Kan. 2004)...14 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)...9 Nova Health Sys. v. Gandy, 416 F.3d 1149 (10th Cir. 2005)...9, 13, 19 S. Utah Wilderness Alliance v. Sierra, No. 2:07-cv CW, 2010 WL (D. Utah Nov. 16, 2010)...18 Summers v. Earth Island Inst., 555 U.S. 488 (2009)...11 Tandy v. City of Wichita, 380 F.3d 1277 (10th Cir. 2004)... passim Wayman v. Amoco Oil Co., 923 F. Supp (D. Kan. 1996)...15 STATE CASES CIT Group/Sales Fin., Inc. v. E-Z Pay Used Cars, Inc., 32 P.3d 1197 (Kan. Ct. App. 2001)...14 Finstad v. Washburn Univ. of Topeka, 845 P.2d 685 (Kan. 1993) v6 ii

4 Case 2:07-md KHV-JPO Document 3183 Filed 01/09/12 Page 4 of 24 First Nat l Bank of Anthony v. Dunning, 855 P.2d 493 (Kan. Ct. App. 1993)...14 Schneider v. Liberty Asset Mgmt., 251 P.3d 666 (Kan. Ct. App. 2011)...12 STATUTES AND RULES Fed. R. Civ. P K.S.A (b) v6 iii

5 Case 2:07-md KHV-JPO Document 3183 Filed 01/09/12 Page 5 of 24 I. INTRODUCTION Despite repeatedly being asked throughout this litigation to identify fuel purchases for his personal use, Plaintiff Zachary Wilson has failed to identify a single purchase of motor fuel for his personal use made prior to the filing of this lawsuit from any Defendant. In response to interrogatories requesting that he identify such personal purchases, he simply directed Defendants to statements and receipts from purchases made by his company on its credit cards from some, but not all, of the Defendants. In an attempt to convert these records of company purchases into personal purchases, Mr. Wilson points to his deposition testimony where he stated that it was possible that he used one of his company s credit cards to purchase fuel for personal use. But even now, in response to this Motion, he does not state affirmatively that he in fact made such personal purchases using company credit cards, nor does he identify which of the hundreds of purchases on the company credit cards were purportedly for his personal use (or from which Defendant such purchases were made). This is not evidence sufficient to confer standing. Mr. Wilson also says that he occasionally or sometimes uses cash to make personal fuel purchases. But again, Mr. Wilson has not identified any such occasional cash purchases, when those cash purchases may have occurred (or if the purchases are within the statutory time period), or even any particular Defendant that he purportedly purchased from and in what amount. This also fails to confer standing. Recognizing the lack of any evidence establishing a purchase for personal use from any Defendant prior to the filing of this lawsuit, Mr. Wilson turns to three additional arguments. None of those is sufficient to establish his personal standing. First, Mr. Wilson presents entirely new evidence of recent, post-lawsuit purchases he made from some -- but again not all -- of the v6 1

6 Case 2:07-md KHV-JPO Document 3183 Filed 01/09/12 Page 6 of 24 Defendants. 1 This evidence does not confer standing for the simple reason that standing is determined based on the facts as they existed at the time the lawsuit was filed. One cannot create standing after the fact, as Mr. Wilson appears to be attempting to do. Second, Mr. Wilson argues that the purchases on his company s credit cards confer standing to him in his personal capacity because he is a guarantor of payment for those cards. As the case law makes clear, however, being a guarantor of payment to a third-party credit card company does not confer standing in a suit brought against the businesses where the credit card was used. Mr. Wilson is not a guarantor of payment to any Defendant, and there is no evidence that the company failed to pay its obligations in any event. Finally, Mr. Wilson makes a vague assertion that he intends this year to purchase fuel from the small subset of the retail motor fuel market he is now suing. Mr. Wilson does not state when he intends to make such purchases, at what locations, or under what circumstances he will buy the fuel (or at what price). Mr. Wilson s vague statement regarding the future does not confer standing, since this intention does not establish the required concrete showing of a certainly impending injury. Mr. Wilson simply is not a proper plaintiff to this action. Unlike Mr. Wilson, his company (Wonderland Miracle Carnival Company, Inc.) did provide evidence of motor fuel purchases from some -- but not all -- Defendants. Wonderland failed to produce any evidence during discovery of any purchases from Defendant Circle K. 2 Mr. Wilson now provides an affidavit stating that he recalls having purchased from Circle K on 1 For example, even these late submissions do not include any purchases from BP-branded stations. 2 Circle K has separately moved for summary judgment on the basis that Circle K has not sold motor fuel in Kansas during the class period. (Dkt. No ) Nothing in the instant brief is meant to concede that a Circle K receipt from Kansas constitutes evidence of a sale by Circle K, or that Circle K has sold fuel in Kansas; i.e. the reality is that a consumer who purchases fuel at a Kansas Circle K -branded convenience store is not purchasing fuel from Circle K. Circle K may prevail on the instant motion even if its other motion is denied, and vice versa v6 2

7 Case 2:07-md KHV-JPO Document 3183 Filed 01/09/12 Page 7 of 24 behalf of Wonderland, but provides no more details. He does not say when that purchase occurred (even approximately), how much it was for (even approximately), or which Circle K locations are at issue. This lack of facts, particularly at this stage of the litigation, fails to confer standing upon Wonderland as to Circle K. II. DEFENDANTS REPLY TO PLAINTIFFS RESPONSE TO DEFENDANTS STATEMENT OF FACTS 1. Uncontroverted. 2. Defendants do not dispute for purposes of this Motion that Mr. Wilson is attempting to assert claims on his own behalf. The point is that he lacks standing to pursue any such claims. 3. Defendants do not dispute for purposes of this Motion that Mr. Wilson testified that [i]t s possible that he purchased motor fuel for personal use with a Wonderland credit card and reimbursed the company. Dep. of Zachary Wilson ( Wilson Dep. ) at 84:8-13, attached hereto as Ex. A. The point is that Mr. Wilson has not in fact identified any such purchases, with respect to any particular Defendant. Defendants also do not dispute for purposes of this Motion that Wilson occasionally purchases motor fuel for himself with cash. Id. at 142:9-12; Aff. of Zachary Wilson ( Wilson Aff. ) (attached as Ex. B to Dkt. No (Pls. Resp. in Opp n to Defs. Mot. for Summ. J. on the Grounds that Pls. Lack Standing ( Pls. Opp n ))) 24 ( sometimes ). But it is undisputed that Mr. Wilson has not identified any such purchases from any Defendant. 4. Plaintiffs have not disputed that the only receipts produced by Mr. Wilson in this case reflect purchases on Wonderland credit cards. Wilson Dep. at 82:4-13, 83:24-84:13. Defendants do not dispute for purposes of this Motion that [i]t s v6 3

8 Case 2:07-md KHV-JPO Document 3183 Filed 01/09/12 Page 8 of 24 possible that Mr. Wilson used a Wright Express, American Express, Discover, Advanta MasterCard, or any other Wonderland credit card to purchase motor fuel for his personal vehicle. However, Wilson has not provided any evidence that such a purchase in fact occurred, nor has he identified -- by receipt or otherwise -- any such purchase. Plaintiffs admit that it would not be possible to discern from a credit card receipt that a fuel purchase made with a Wonderland credit card was purportedly for Mr. Wilson s personal use. Pls. Opp n at Defendants do not dispute for purposes of this Motion that Mr. Wilson occasionally purchases fuel for personal use with cash. Wilson Dep. at 142:9-12; Wilson Aff. 24 ( sometimes ). Defendants also do not dispute for purposes of this Motion that Mr. Wilson testified that [i]t s possible he purchased fuel for personal use with a Wonderland credit card. Wilson Dep. at 84:8-13. The point is that Mr. Wilson has not identified any personal fuel purchase from any Defendant prior to the filing of this lawsuit either with cash or with a Wonderland credit card. 6. Plaintiffs have not disputed, and in fact admit, that Wonderland has not produced any credit card receipts evidencing motor fuel purchases from Circle K prior to the filing of this lawsuit. Pls. Opp n at 3. Wonderland has not otherwise identified a single fuel purchase from Circle K made prior to the filing of this lawsuit. III. DEFENDANTS RESPONSE TO PLAINTIFFS STATEMENT OF FACTS 1. Not disputed for purposes of this Motion. 2. Not disputed for purposes of this Motion. 3. Not disputed for purposes of this Motion v6 4

9 Case 2:07-md KHV-JPO Document 3183 Filed 01/09/12 Page 9 of Not disputed for purposes of this Motion that Mr. Wilson is attempting to assert claims on his own behalf. The point is that he lacks standing to pursue any such claims. 5. Not disputed for purposes of this Motion. 6. Not disputed for purposes of this Motion. 7. Not disputed for purposes of this Motion. 8. Not disputed for purposes of this Motion. 9. Not disputed for purposes of this Motion. 10. Defendants do not dispute for purposes of this Motion that Mr. Wilson has used a Wright Express, American Express, Discover, and Advanta MasterCard credit card to purchase motor fuel for Wonderland and that he testified that [i]t s possible that he has used one of these credit cards to purchase fuel for personal use. Wilson Dep. at 84:4-9. But Mr. Wilson has not in fact identified any such personal purchases, with respect to any particular Defendant. 11. Defendants do not dispute for purposes of this Motion that Mr. Wilson occasionally uses cash to purchase fuel for personal use. Id. at 142:9-12. Defendants also do not dispute for purposes of this Motion that [i]t s possible that Wilson has used a Wonderland credit card to purchase fuel for personal use. Id. at 84:4-9. The point is that Mr. Wilson has not identified any personal fuel purchase from any Defendant prior to the filing of this lawsuit either with cash or with a Wonderland credit card. 12. Defendants do not dispute for purposes of this Motion that [i]t s possible that Wilson purchased fuel for personal use using one of Wonderland s corporate v6 5

10 Case 2:07-md KHV-JPO Document 3183 Filed 01/09/12 Page 10 of 24 credit cards and then reimbursed the company. Id. at 84:4-9. The point is that Wilson has never provided any evidence that this in fact occurred. 13. Defendants do not dispute for purposes of this Motion that Wilson occasionally or sometimes uses cash to purchase fuel for himself. Id. at 142:9-12; Wilson Aff. 24. The point is that Wilson has never identified a cash purchase from any Defendant prior to the filing of this lawsuit. 14. Defendants do not dispute for purposes of this Motion that Wonderland has purchased gasoline with cash and has occasionally purchased diesel fuel with cash. Wilson Dep. at 92: Disputed. Plaintiff Wilson has not set forth specific facts to create a genuine issue of material fact that he purchased motor fuel for personal use from any Defendant prior to the filing of this lawsuit. He has not identified (through testimony, discovery response, or in his affidavit for this Motion) any such purchase, he has provided no receipts for any such purchase, and has not identified any transaction appearing on a Wonderland credit card statement that he purports reflects a motor fuel purchase for personal use. 16. Not disputed, except for Circle K. Defendants do not dispute for purposes of this Motion that Wonderland purchased motor fuel from Defendants prior to the filing of this lawsuit, except for Circle K. As to Defendant Circle K, Plaintiff Wonderland has produced insufficient evidence to create a genuine issue of material fact that Wonderland purchased motor fuel from Circle K prior to the filing of this lawsuit v6 6

11 Case 2:07-md KHV-JPO Document 3183 Filed 01/09/12 Page 11 of Not disputed. Defendants do not dispute that the quoted exchange occurred during Wilson s March 26, 2009, deposition. 18. Not disputed. Defendants do not dispute for purposes of this Motion that Plaintiff Wilson testified that he was suing several fuel companies, one of which is Sam s Club, Wal-Mart, BP, Coastal, 7-Eleven, Casey s, Ampride, that there are several others, and that Mr. Wilson did not recall the entire list. Id. at 51:21-52: Disputed in part. Kum & Go LC is not a named defendant in Wilson, et al. v. Ampride, et al., No. 06-cv KHV. See, e.g., Am. Compl. (Dkt. No. 2373). 20. Not disputed for purposes of this Motion. Plaintiff Wilson has produced insufficient evidence to create a genuine issue of material fact that he in fact purchased motor fuel for personal use from any Defendant prior to the filing of this action. He has not identified (through testimony, discovery response, or in his affidavit for this Motion) any such purchase, he has provided no receipts for any such purchase, and has not identified any transaction appearing on a Wonderland credit card statement that he purports reflects a motor fuel purchase for personal use. 21. Not disputed for purposes of this Motion. 22. Not disputed for purposes of this Motion. 23. Not disputed for purposes of this Motion. However, Plaintiff Wonderland has produced insufficient evidence to create a genuine issue of material fact that Wonderland purchased motor fuel from Defendant Circle K prior to the filing of this lawsuit v6 7

12 Case 2:07-md KHV-JPO Document 3183 Filed 01/09/12 Page 12 of Disputed. Plaintiff Wilson has produced insufficient evidence to create a genuine issue of material fact that he in fact purchased motor fuel for personal use from any Defendant prior to the filing of this action. He has not identified (through testimony, discovery response, or in his affidavit for this Motion) any such purchase, he has provided no receipts for any such purchase, and has not identified any transaction appearing on a Wonderland credit card statement that he purports reflects a motor fuel purchase for personal use. 25. Not disputed for purposes of this Motion, except with respect to Circle K. As to Defendant Circle K, Plaintiff Wonderland has produced insufficient evidence to create a genuine issue of material fact that Wonderland purchased motor fuel from Circle K prior to the filing of this lawsuit. 26. Not disputed for purposes of this Motion, except that Mr. Wilson has produced insufficient evidence that he purchased fuel from any Defendant prior to this lawsuit. 27. Not disputed for purposes of this Motion. 28. Not disputed for purposes of this Motion. Defendants do not dispute for purposes of this Motion that Plaintiff Wilson has purchased motor fuel above 60 F from 7- Eleven, Shell, Sam s Club, Casey s, QuickTrip, Circle K, and Valero branded stations after this case was filed. However, these purchases do not create a genuine issue of material fact that Mr. Wilson purchased motor fuel for personal use from any of the above-listed Defendants (or any other Defendant) prior to the filing of this lawsuit. 29. Not disputed for purposes of this Motion, but irrelevant v6 8

13 Case 2:07-md KHV-JPO Document 3183 Filed 01/09/12 Page 13 of Not disputed for purposes of this Motion, but irrelevant and insufficient to confer standing as explained below. 31. Not disputed for purposes of this Motion, but irrelevant. 32. Not disputed for purposes of this Motion, but irrelevant. 33. Not disputed for purposes of this Motion, but irrelevant. 34. Not disputed for purposes of this Motion, but irrelevant. 35. Not disputed for purposes of this Motion, but irrelevant. 36. Not disputed for purposes of this Motion, but irrelevant. IV. ARGUMENT AND AUTHORITIES A. Mr. Wilson Has Failed to Identify a Single Purchase of Motor Fuel For His Personal Use Made Prior to This Lawsuit and Thus Has Not Established Any Injury-In-Fact Traceable to Any Defendant Standing is determined as of the time the action is brought. Nova Health Sys. v. Gandy, 416 F.3d 1149, 1154 (10th Cir. 2005) (emphasis added). In other words, a Court has an obligation to assure [itself] that [a plaintiff] had Article III standing at the outset of the litigation. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180 (2000) (emphasis added). To meet the irreducible constitutional minimum of standing a plaintiff must show: (1) he has suffered an injury in fact; (2) the injury is fairly traceable to the allegedly unlawful conduct of the Defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by the requested relief. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Plaintiff, as the party seeking to invoke the Court s jurisdiction, bears the burden of proof on questions of standing. Id. at 561. To satisfy this burden, the plaintiff must set forth by affidavit or other evidence specific facts that, if taken as true, establish each of these elements. Nova Health Sys., 416 F.3d at 1154 (emphasis added) v6 9

14 Case 2:07-md KHV-JPO Document 3183 Filed 01/09/12 Page 14 of 24 It is undisputed that Mr. Wilson has never identified any purchase of motor fuel for personal use from any Defendant that occurred before this case was filed, even when specifically asked to do so. See, e.g., Pls. Resps. to Defs. Consolidated First Set of Interrogs. ( Pls. Resps. to Interrogs. ) (attached as Ex. C to Pls. Opp n) at 2. In their very first interrogatory request, Defendants asked Mr. Wilson to identify his purchases of motor fuel made during the relevant time period, and include information regarding the location, date, volume, brand, type of fuel, method of payment, and the amount paid. Instead of providing any of that information (or even estimates of that information), he simply responded that he could not presently recall all the motor fuel purchases he has made over the last seven years, but Plaintiff is certain that he has averaged purchasing motor fuel in the state of Kansas at least four times a month during the period. Id. This response not only failed to identify any motor fuel purchase, but it also did not identify any Defendant from whom he may have purchased. In that same response, Mr. Wilson directed Defendants to documents produced by his company, Wonderland. Id. Those documents were not records of his personal fuel purchases, but instead reflected the fuel purchases on credit cards issued to Wonderland. Mr. Wilson confirmed that the only documents produced were Wonderland credit card receipts and statements, and that all the credit card companies identified were for cards used to purchase fuel for Wonderland. Id. at 3; Wilson Dep. at 71:17--81:1, 82:12-13, 83:24-84:3. Mr. Wilson testified at his deposition that he does not use the same credit cards as Wonderland to purchase motor fuel for personal use. Wilson Dep. at 81:17-24, 83:8-12. Mr. Wilson does not deny that such evidence fails to satisfy his burden to establish standing to bring this lawsuit. Instead, Mr. Wilson argues that two other facts regarding prelawsuit activity confer standing. They do not v6 10

15 Case 2:07-md KHV-JPO Document 3183 Filed 01/09/12 Page 15 of 24 First, Mr. Wilson points to his testimony that it is possible that he has used a Wonderland credit card to purchase fuel for personal use and then reimbursed the company, even though he also admits that as a matter of practice, [he] [doesn t] purchase fuel for [his] personal use with any of these business credit cards. Id. at 84:4-13. This testimony is insufficient to create a genuine issue of material fact as to Mr. Wilson s standing. Mr. Wilson must set forth specific facts showing standing; facts that are merely possible will not suffice. Tandy v. City of Wichita, 380 F.3d 1277, 1284 (10th Cir. 2004) ( A claimed injury that is contingent upon speculation or conjecture is beyond the bounds of a federal court s jurisdiction. ); Summers v. Earth Island Inst., 555 U.S. 488, 499 (2009) (concrete evidence is required to establish standing and speculation does not suffice ). Having failed to point to any purchase reflected on Wonderland credit card documents as ones for his personal use, Mr. Wilson cannot rely upon those receipts to satisfy standing. Second, Mr. Wilson argues that his statements that he occasionally or sometimes purchases fuel for his personal use with cash satisfies his burden to prove standing as to each Defendant. Wilson Dep. at 142:9-12; Wilson Aff. 24. But Mr. Wilson never identifies any Defendant from whom he ever purchased fuel with cash, when those transactions purportedly occurred, or how much he paid. Although he testified that he maintains receipts of the purported cash purchases (Wilson Dep. at 142:13-23), he has not produced any receipts or the information they contain -- even after this Motion was brought. On this record, Mr. Wilson s vague testimony that he has made occasional cash purchases cannot not demonstrate any injury in fact fairly traceable to any Defendant, since Mr. Wilson does not identify any Defendant and has provided no other information regarding any particular cash transaction. Mr. Wilson s theory of injury in this case is that due to the lack v6 11

16 Case 2:07-md KHV-JPO Document 3183 Filed 01/09/12 Page 16 of 24 of certain disclosures (including the temperature of the fuel) and the absence of automatic temperature correction, he did not receive fair value for [his] fuel dollar because he might have been able to get a better deal elsewhere. Pretrial Order, MDL No (Dkt. No. 2558) at 12 ( Plaintiffs Contentions ); see also, e.g., Compl., Wilson, et al. v. Ampride, et al., No. 06-cv KHV (Dkt. No. 1) at 91, 97. But without knowing at a minimum from whom Mr. Wilson purchased fuel on those few occasions when he used cash, and how much he paid and when, it is impossible to demonstrate such injury, because it would be impossible to determine whether -- even under his theory of the case -- he receive[d] fair value for [his] fuel dollar. Whether he received fair value can only be determined by comparing, for example, how much he paid with what he might have paid elsewhere, at another time of day, or if ATC had been implemented. E.g., Finstad v. Washburn Univ. of Topeka, 845 P.2d 685, (Kan. 1993) (even if an action is a per se violation of the KCPA, it does not follow that the [plaintiffs] can recover, absent a showing that they are aggrieved by such violation; to demonstrate being aggrieved, a plaintiff must show a loss or injury resulting from a violation of the Act ); see also Schneider v. Liberty Asset Mgmt., 251 P.3d 666, (Kan. Ct. App. 2011) (there can be no claim under the KCPA where plaintiff can show no harm to her as a result of the deceptive [act], the consumer must show that there was a causal connection between the deceptive act and the claimed injury and that her damage is related to the misrepresentation ). And it certainly is impossible to trace any injury to any particular Defendant based on Mr. Wilson s evidence, since no transaction with any Defendant is identified. 3 3 Mr. Wilson also refers to a third method by which he might have purchased fuel for his personal use: debit cards. However, he has expressly disavowed relying on those debit purchases in this case. Pls. Opp n at 2, 16; Wilson Dep. at 81:25-82:10. Moreover, as with his Footnote continued on next page v6 12

17 Case 2:07-md KHV-JPO Document 3183 Filed 01/09/12 Page 17 of 24 Mr. Wilson apparently desires to proceed to trial without having identified any particular transaction that purportedly injured him fairly traceable to any Defendant. The Constitution does not permit such a result. B. Mr. Wilson s New Evidence and Other Legal Arguments Also Fail to Confer Standing Recognizing the lack of any evidence establishing a purchase for personal use from any Defendant prior to the filing of this lawsuit, Mr. Wilson raises three additional arguments in his response to Defendants Motion. None of these arguments changes the fact that Mr. Wilson lacks standing to bring his claims. 1. Plaintiffs new evidence of post-lawsuit purchases, even if properly before the Court, does not confer standing. Mr. Wilson has submitted entirely new evidence of recent, post-lawsuit fuel purchases from some -- but not all -- Defendants. Specifically, Mr. Wilson submitted photographs and Google street views of Circle K-branded stations post-dating the filing of Defendants Motion, and receipts from certain Defendants branded stations post-dating the filing of this lawsuit. Wilson Aff. Exs Even assuming these submissions complied with Plaintiffs Federal Rule of Civil Procedure 26 obligations, 4 all of this evidence is insufficient to create a genuine issue of material fact that Mr. Wilson had standing to sue any Defendant at the relevant time -- i.e., at the filing of the lawsuit. See Nova Health Sys., 416 F.3d at 1154 ( [s]tanding is determined as of Footnote continued from previous page purported cash purchases, he did not produce any documents in support of any debit card purchases (even though he testified at his deposition that he has retained debit card statements) and did not provide any information regarding when those debit card purchases were made, how much he paid for the fuel, or at which Defendants stations he used debit cards. Wilson Dep. at 81:17-24, 83:8-23. The purported debit card purchases thus cannot meet his burden to prove standing against any Defendant either. 4 Defendants have serious questions that these late submissions comply with the text and spirit of Rule 26. However, they assume for purposes of this Motion that this evidence is properly before the Court, while reserving their right to later object to the use of this evidence at trial v6 13

18 Case 2:07-md KHV-JPO Document 3183 Filed 01/09/12 Page 18 of 24 the time the action is brought ); Tandy, 80 F.3d at 1284 ( Standing must be analyzed from the facts as they existed at the time the complaint was filed. ). With regard to BP in particular, Mr. Wilson has produced no receipts for any personal fuel purchase from a BP-branded station at any time, even after the filing of the lawsuit. See Wilson Dep. at 83:24-84:3 (all of the receipts produced were for fuel purchases for Wonderland); Wilson Aff. Exs. 1, (none of the new receipts are from a BP-branded station). Thus, even if post-lawsuit evidence were relevant to determining standing (which it is not), he has produced no such evidence with respect to BP. 2. Being a guarantor of payment for Wonderland s credit cards does not confer standing to assert claims for fuel purchases made by Wonderland with those cards. Mr. Wilson also argues that because he has agreed to be a guarantor of payment for certain Wonderland credit cards, he has standing to assert claims for fuel purchases made for Wonderland with those cards. Pls. Opp n at 17. The case law actually confirms that Mr. Wilson s status as guarantor of payment to a third-party credit card company does not confer standing to sue the business where the credit card was used. See Kestrel Holdings I, L.L.C. v. Learjet Inc., 316 F. Supp. 2d 1071, (D. Kan. 2004) (holding that that the KCPA claim belonged to plaintiff corporation even though plaintiff s president had assumed specific liability for the aircraft because the purchase agreement was between plaintiff and Defendant Learjet and thus plaintiff had no standing to sue under the KCPA) (emphasis added); First Nat l Bank of Anthony v. Dunning, 855 P.2d 493, 498 (Kan. Ct. App. 1993) ( [A]n analysis of the cases where the KCPA was applied reveals that the Act was applied only to the parties to the contract. To hold [a gratuitous surety] was covered by the KCPA would be to extend the KCPA to third parties. ) (internal citations omitted) (emphasis added); CIT Group/Sales Fin., Inc. v. E-Z Pay Used Cars, Inc., 32 P.3d 1197, 1204 (Kan. Ct. App. 2001) (holding [t]he KCPA s protection is v6 14

19 Case 2:07-md KHV-JPO Document 3183 Filed 01/09/12 Page 19 of 24 limited to individuals and sole proprietors who directly contract with suppliers for goods or services, and it is not extended to individuals who promise performance of a corporation contracting with a supplier. ). Mr. Wilson s attempt to rely on Wayman v. Amoco Oil Co. is misplaced. Wayman involved various claims by Amoco service station dealers against Amoco. 923 F. Supp. 1322, 1331 (D. Kan. 1996). Although some plaintiffs had incorporated their service station dealerships, each plaintiff had individually entered into a franchise and lease agreement with Amoco. Id. at Because the station dealers -- as individuals -- and not their respective corporations were direct parties to the contracts at issue, the individuals were permitted to bring KCPA claims against Amoco. Id. at Here, in contrast, the transactions and alleged liabilities are wholly between Wonderland and Defendants. The fact that Wilson is personally liable to a third-party credit card company for Wonderland s purchases, but not to any Defendant, simply does not confer standing to Mr. Wilson to bring a KCPA claim Wilson s vague assertion that he intends to purchase fuel from Defendants this year is insufficient to show certainly impending injury traceable to any Defendant. As a last attempt to save standing, Mr. Wilson points to his statement in his declaration that he intends to purchase fuel from Defendants in the future. However, he does not identify which Defendants or locations he plans to visit, when he intends to do so, or any other details regarding his intended purchases (such how he will select from whom to purchase and at what 5 Wonderland thus is the only party that can rely upon the credit card receipts to demonstrate standing, and it is well-established that a corporation cannot bring a claim under the KCPA. See K.S.A (b) (defining consumer as an individual, husband and wife, sole proprietor, or family partnership who seems or acquires property or services for personal, family, household, business or agricultural purposes ); Wayman, 923 F. Supp. at 1363 ( [A] corporation or similar entity that has suffered an injury as a result of a deceptive or unconscionable act or practice cannot assert a claim under the KCPA. ) v6 15

20 Case 2:07-md KHV-JPO Document 3183 Filed 01/09/12 Page 20 of 24 relative prices). See Pls. Opp n at 10-11; Wilson Aff. 31. Although Defendants represent only a small fraction of the motor fuel market in Kansas and Mr. Wilson has not even established that he purchased motor fuel for personal use from any of those companies prior to filing this lawsuit, Mr. Wilson simply states that his intention is to purchase from these Defendants many times this year. Wilson Aff. 31. As an initial matter, a stated intention to purchase fuel in the future cannot create standing to bring claims for past injury or damages. An intent to suffer future injury can never confer standing to recover for past harm. See Tandy, 380 F.3d at Even as to any prospective relief, Wilson s arguments have no merit. Plaintiffs cite no case, and Defendants are not aware of any, in which standing was manufactured by a consumer s assertion that he intended to later go out and buy a product. But even if standing could potentially be generated in cases involving the purchase of products, Wilson still does not satisfy the requirements necessary to establish standing for prospective relief via his vaguely asserted future intentions. To be permitted to seek prospective relief based upon actions that have not yet occurred, a plaintiff bears the burden of proving that the threatened injury is concrete and certainly impending. Id. at What has happened in the past has a bearing on whether there is a real and immediate threat of repeated injury. Id. As described above, Mr. Wilson s alleged injury in this case is an economic one -- i.e., that he did not receive fair value for [his] fuel dollar. Pretrial Order at 12. According to Mr. Wilson, retailers method of sale means that the market for motor fuel is such that it results in either the buyer or seller gaining a competitive advantage in a particular transaction, which inconsistency would be eliminated by requiring ATC or other disclosures. Id. at 13 (emphasis v6 16

21 Case 2:07-md KHV-JPO Document 3183 Filed 01/09/12 Page 21 of 24 added). In other words, according to Mr. Wilson s allegations, merely purchasing fuel does not mean that a particular consumer has been injured; rather, whether Mr. Wilson (or anyone else) has suffered injury depends upon the facts of that transaction. Yet Mr. Wilson provides none of the details of his proposed future purchases, or how his unexplained selection of where he plans to purchase, when, and at what price will result in his injury. This hardly satisfies the requirement that standing based on future injury be concrete and certainly impending. The only case Wilson relies upon for his position, Tandy v. City of Wichita, highlights why Mr. Wilson s vague future plans do not confer standing. In Tandy, several plaintiffs brought actions alleging past and future injury as a result of a single defendant s (the City of Wichita) violation of the Americans with Disabilities Act based on the failure of its bus system to provide appropriate accessibility. 380 F.3d In that case, plaintiffs had clear and indisputable evidence of past instances in which the defendant s actions had violated their statutory rights. Id. at They also submitted evidence of similar future trips they planned to take, and evidence of the high percentage of time in the past the busses failed to conform to the Act s requirements. E.g., id. at 1284 (plaintiff had established that she is under a realistic threat of experiencing a lift malfunction during at least 20 percent of her several yearly attempts to use the buses). Such concrete evidence of statutory injury -- traceable to the only defendant at issue -- satisfied Article III standing requirements. Id. The plaintiffs in Tandy were very different from Mr. Wilson, whose only support for his purported future injury is a single sentence in which he declares that he plans to purchase fuel from Defendants this year. See Wilson Aff. 31. Mr. Wilson fails to provide any other details as to which of Defendants stations he plans to visit, under what circumstances he might visit a particular Defendant s branded-station, or how the price or other factors might influence his v6 17

22 Case 2:07-md KHV-JPO Document 3183 Filed 01/09/12 Page 22 of 24 actions. Further, as described above, Mr. Wilson has not presented evidence of any past purchase of motor fuel for personal use from any Defendant prior to the filing of this lawsuit. Specific and documented prior injuries is central to demonstrate the imminence of future harm. See, e.g., S. Utah Wilderness Alliance v. Sierra, No. 2:07-cv CW, 2010 WL , at *1, *5 (D. Utah Nov. 16, 2010) (in discussing Tandy, [h]aving shown that [plaintiffs] had relied on the busses systematically in the past, it was not a difficult leap [for the court] to believe that the mere expression of intent to use it in the future was concrete and any injury, likewise, imminent.... [W]here the past actions do not evoke a well-established trend, pattern, habit, or practice that can be relied upon with confidence regarding the specific site involved in the litigation, more particularity in the planning is required. ) (emphasis added). With regard to BP in particular, Mr. Wilson has not presented evidence of any purchases at all (pre- or post-lawsuit). His argument that he has standing based on his single sentence statement of intent to purchase from Defendants in the future is particularly inappropriate as to BP. 6 C. Wonderland Lacks Standing to Bring Claims Against Defendant Circle K For reasons similar to those articulated in Parts A and B above, Wonderland lacks standing to pursue its claims against Circle K. Plaintiffs admit that Wonderland has failed to 6 Even if Mr. Wilson could satisfy the minimum constitutional requirements for Article III standing (which he cannot), the Court should still deny standing for the prudential reason that Wilson s vague assertion that he intends to purchase fuel from the Defendants at some unknown point in the future amounts to nothing more than a generalized grievance that Defendants are violating the law, without any evidence of personal injury or that he is attempting to assert his own rights rather than those of others. See Allen v. Wright, 468 U.S. 737, 751 (1984) (explaining that often generalized grievances [are] more appropriately addressed in the representative branches of government); Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 12 (2004); Bd. of Cnty. Comm rs of Sweetwater Cnty. v. Geringer, 297 F.3d 1108, 1112 (10th Cir. 2002) v6 18

23 Case 2:07-md KHV-JPO Document 3183 Filed 01/09/12 Page 23 of 24 produce any evidence during written discovery of any purchases from Circle K. Pls. Opp n at 3. Even now, in response to Defendants Motion, Wonderland has not produced a single Circle K receipt. 7 Plaintiffs argue that even in the absence of any Wonderland receipts, or any other evidence (through testimony, discovery response, or Wilson s affidavit) identifying a particular transaction at a Circle K-branded station occurring prior to the filing of this lawsuit, they are nonetheless entitled to move forward with this case and present testimony at trial regarding any pre-litigation cash or credit card purchases from Circle K. Id. This is an untenable result. Mr. Wilson now provides a affidavit stating that he recalls purchasing from Circle K on behalf of Wonderland prior to the filing of this lawsuit, but provides no more details. Wilson Aff. 22. This evidence is inadequate at this stage of the litigation to show that Wonderland has standing to sue Circle K. Wilson s affidavit testimony does not even approximate when this purchase occurred, how much the purchase was, or where the station was located. Wilson s statement therefore fails to provide the specific facts required from a plaintiff at the summary judgment stage to establish standing. See Nova Health Sys., 416 F.3d at 1154 (at the summary judgment stage, a plaintiff must set forth specific facts necessary to support its claim). V. CONCLUSION Plaintiffs bear the burden of proof at the summary judgment stage to set forth specific facts supporting standing. For the reasons described above and in Defendants Motion, Plaintiffs have not met their burden. The Court should accordingly grant summary judgment to all Defendants on the claims of Plaintiff Wilson, and to Defendant Circle K on the claims of Plaintiff Wonderland. 7 Wilson produced a single cash receipt from a Circle K station from July 19, Wilson Aff. 5 ( On July 19, 2011, I purchased gas from the Circle K location at 1800 E. Santa Fe Gardner Kansas ); id. Ex. 1, 19. There is no indication whatsoever that this purchase was for Wonderland, and even if it were, it post-dates the filing of this lawsuit v6 19

24 Case 2:07-md KHV-JPO Document 3183 Filed 01/09/12 Page 24 of 24 Dated: January 9, 2012 Respectfully submitted, By: /s/ Martin M. Loring Martin M. Loring KBA #20840 Husch Blackwell LLP 4801 Main Street, Suite 1000 Kansas City, Missouri (816) (816) (FAX) and By: /s/michael E. Norton Michael E. Norton KBA#17508 Husch Blackwell LLP 4801 Main Street, Suite 1000 Kansas City, Missouri (816) (816) (FAX) LIAISON COUNSEL FOR DEFENDANTS Certificate of Service I hereby certify that this pleading was filed electronically on the CM/ECF system on January 9, 2012, which caused all CM/ECF participants to be served by electronic means, as is more fully shown by the Court s Notice of Electronic Filing. s/martin M. Loring Attorney v6 20