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Oral Argument Recap – Southstar Energy v. Ellison

January 11, 2010

The Supreme Court held oral argument this morning in the case of Southstar Energy Services v. Ellison, the first of two cases the Court will consider this week related to the voluntary payment doctrine.  Georgia Natural Gas Services attorney Rob Remar led off, arguing the Court of Appeals rejected 150 years of precedent when it impliedly repealed the voluntary payment rule in its decision.  Remar argued that the plaintiffs in the case paid their bills despite being able to see the prices on a public site, making the case indistinguishable from Cotton and Telescripps, two major voluntary payment cases from the Georgia Court of Appeals.

Arguing to overturn the Court of Appeals decision that found an irreconcilable conflict between the specific private right of action in the Natural Gas Act and the general voluntary payment rule, Remar said there was no inconsistency because of the numerous consumer protections provided by the Gas Act that are unaffected by application of the voluntary payment rule.  Remar also noted that repeals by implication are disfavored in Georgia law.  In response to questions from Justice Carley, Remar explained that under no set of facts could the plaintiffs prevail, because everything required for the plaintiffs to locate the correct charges was publicly-available.

Remar received a total of eight questions, and left approximately 2:30 for rebuttal.

Anne Lewis, of Strickland Brockington Lewis LLP, argued on behalf of the plaintiffs, stating that the specific statutory rightof action  under the Natural Gas Act prevailed over the general contract defense of voluntary payment.  Lewis responded to Remar’s contention that voluntary payment had been rejected by noting that the Court of Appeals only rejected the application of voluntary payment in this particular case.  Lewis distinguished Cotton and Telescripps by noting that neither of those cases involved a private right of action.

In response to questions, Lewis noted the huge billing problems that led to the amendment of the Natural Gas Act in 2002, and that the primary purpose of the amended act was the protection of consumers.  Lewis walked through the various ways GNG reported its prices for plans on cover letters instead of the regular forms, and how GNG did not mention the customer service charges.  There were a number of things consumers could not determine, and under GNG’s reading, Lewis argued there could be no recovery, which is inconsistent with the text of the statute.

Lewis received six questions and used all of her allotted time.

In rebuttal, Remar noted the principles that he said applied to this case, including that repeals by implication are disfavored, the General Assembly is presumed to know the law, and that there is no conflict between the two statutes.  Finally, Remar noted the billing dispute policy of GNG, which requires customers to pay the undisputed amount of their bills, while withholding payment on the disputed amount.

Atlanta’s NPR station ran a story about the argument this morning, and the Atlanta Journal-Constitution has posted a brief Associated Press story on the oral argument.

Disclosure: Strickland Brockington Lewis LLP represents the plaintiffs in this case.

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