SPECIAL REPORT: Plaintiffs say hot fuel lawsuits should go to trial

| 11/21/2007

Wednesday, Nov. 21, 2007 – Attorneys for the consumers in the consolidated case against fuel retailers and oil companies that sell “hot fuel” say the issue deserves to go to trial.

Attorney Robert A. Horn with Horn Aylward & Bandy, Kansas City, MO, filed a motion on Monday, Nov. 19, in response to the oil and fuel companies’ request that U.S. District Court Judge Kathryn Vratil dismiss the case. The consumers’ response reiterates their complaints that retailers and oil companies milk consumers out of $3 billion per year by selling hot fuel.

Hot fuel refers to gasoline or diesel that has expanded due to temperatures higher than 60 degrees. The claim consumers have made in 40 consolidated lawsuits from 28 states is that oil companies and retailers willingly profit from the lack of temperature compensation in the retail sale of fuel.

“Defendants violate this principle – and mislead consumers – when they sell motor fuel that has not been adjusted for temperature and without disclosing the temperature of the fuel or the effect that temperature has on the amount of fuel actually delivered,” Horn wrote in the 45-page response filed in U.S. District Court in Kansas City, KS.

Judge Vratil has taken the motion to dismiss and the consumers’ response under advisement.

Truckers and other highway user groups are concerned about hot fuel because of the effects fuel has on their bottom lines.

John Siebert, project leader with the OOIDA Foundation, said the consumers’ response to the oil companies’ motion to dismiss the case hits the nail on the head.

“They took a really assertive, if not aggressive, stance in this,” Siebert said.

Siebert discovered the widespread nature of the hot fuel issue during a study conducted by the OOIDA Foundation.

He said retailers and oil companies should render the dispute about volume a non-issue by installing temperature-compensation devices at all retail fuel pumps.

As the consumers’ response points out, few states actually prohibit voluntary placement of the devices, therefore the technology is permissible.

Retailers and oil companies continue to resist implementing the devices, saying the installation would cost too much and that those costs would be passed on to consumers in the form of higher fuel prices.

The consumers continue to allege that oil marketers have bullied pump manufacturers like Gilbarco Veeder-Root into withholding temperature-compensation devices from the marketplace.

A Gilbarco spokesman testified at a congressional hearing this past summer that the oil industry did not coerce the company into withdrawing an approved temperature-compensation device in California.

The plaintiffs hope to learn more about that during the trial. They have asserted in the consolidated lawsuit documents that there is enough evidence to state a claim for “civil conspiracy.”

– By David Tanner, staff writer