Case No. RK272-03783
March 13, 1997
DECISION AND ORDER
OF THE DEPARTMENT OF ENERGY
Supplemental Order
Name of Applicant: Rickel Home Centers, Inc.
Date of Filing: June 14, 1996
Case Number: RK272-03783
This Decision and Order will consider an Application for Supplemental Refund filed in the Subpart V crude oil refund proceeding by Rickel Home Centers, Inc. (RHC)(1) The Application is based upon purchases of refined petroleum products made by Rickel Home Centers (Rickel), then a division of Plainbridge, Inc., from August 1973 to January 1981.
In the Application, RHC explains that it bought the assets of Rickel from Plainbridge on August 24, 1994. The assets purchased in the sale included: real property, inventory, accounts receivable, trademark registrations, leases, certain records, and "all claims, causes of action, choses in action, rights of recovery and rights of set- off.(2) Excluded items included cash, tax refunds, all assets that are "not assignable or otherwise transferable to the Purchaser," and all "capital stock of the Seller and of its subsidiaries.(3)
We have a statutory duty to identify and provide restitution to injured persons. 15 U.S.C. § 4502 (b). We would be negligent in discharging that duty if we granted a refund to someone other than an identified injured person. Texaco/Huffy Gas, 22 DOE ¶ 85,220 at 88,586 n. 4. The refund procedures we have established provide that the right to receive a refund generally remains with the owner of a
firm during the price control period. However, the right to receive a refund can be transferred to a subsequent owner of the firm if: (i) the firm is a corporation, the entire capital stock of which was purchased by the subsequent owner; or (ii) the firm's assets were sold under an agreement that indicated, either explicitly or implicitly, that potential refunds were being transferred. Mrs. M.B. Troy, 23 DOE ¶ 85,049 (1993).
RHC has confirmed that it did not purchase the capital stock of Rickel when it purchased the assets of the firm from Plainbridge in 1994. A thorough review of the purchase agreement submitted by RHC does not show that the right to receive future crude oil refund monies due to the Rickel was either explicitly or implicitly transferred pursuant to the sale agreement. Under law, corporations are considered wholly separate persons from their stockholders. Therefore, under long-standing OHA precedent, corporations such as Rickel (as a division of Plainbridge), that suffered injury due to alleged crude oil overcharges during the refund period, are themselves considered injured persons. Although RHC points to the section in the purchase agreement which deals with claims, causes of action, choses in action and rights of recovery to support its assertion that it is entitled to receive refund monies due to Rickel, we find this unconvincing. The right to receive a refund is premised on the idea of providing restitution to persons that suffered injury due to alleged crude oil overcharges during the refund period. Accordingly, the right to claim status as an injured person, for purposes of the Subpart V crude oil refund proceeding, is something which can be transferred to a second party only when there is a sales agreement containing specific contractual language addressing the right to receive a crude oil refund. We will therefore deny the Application for Supplemental Refund submitted by RHC.
It Is Therefore Ordered That:
(1) The Application for Supplemental Refund filed by Rickel Home Centers, Inc., Case No. RK272-003783, is hereby denied.
(2) This is a final Order of the Department of Energy.
George B. Breznay
Director
Office of Hearings and Appeals
Date: March 13, 1997
(1) For information pertaining to the Supplemental Distribution of Subpart V Crude Oil Refund Monies, see State of Montana, et al., 25 DOE ¶ 85,059 (1995).
(2)" See Asset Purchase Agreement between Plainbridge, Inc. and RC Acquisition Corp., dated August 24, 1994, submitted to the OHA on June 14, 1996.
(3)" Ibid.