FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WAH CHANG, a division of TDY 

Industries, Inc., a California

corporation,

Plaintiff-Appellant,

v.

No. 05-55367 DUKE ENERGY TRADING AND

MARKETING  D.C. No. , LLC, a Delaware

limited liability company; RELIANT CV-04-01839-RHW

ENERGY SERVICES INC., a Delaware

corporation; TRANSALTA ENERGY

MARKETING (CALIFORNIA), INC., a

Delaware corporation,

Defendants-Appellees. 

15087
WAH CHANG, a division of TDY 

Industries, Inc., a California

corporation,

Plaintiff-Appellant,

v.

AVISTA CORPORATION, a

Washington corporation; AVISTA

ENERGY, INC., a Washington

corporation; AVISTA POWER LLC, a

Washington limited liability

company; DYNEGY POWER

MARKETING, INC., a Texas

corporation; EL PASO ELECTRIC

COMPANY, a Texas corporation;

IDACORP INC., an Idaho No. 05-55369

corporation; IDAHO POWER

D.C. No. COMPANY, an Idaho corporation; 

IDACORP ENERGY, L.P., a CV-04-01840-RHW

Delaware limited partnership; OPINION

PORTLAND GENERAL ELECTRIC

COMPANY, an Oregon corporation;

POWEREX CORPORATION, a British

Columbia corporation; PUGET

ENERGY, INC., a Washington

corporation; PUGET SOUND ENERGY,

INC., a Washington corporation;

SEMPRA ENERGY, a California

corporation; SEMPRA ENERGY

RESOURCES, a California

corporation; SEMPRA ENERGY

TRADING, a Delaware corporation;

WILLIAMS POWER COMPANY INC., a

Delaware corporation,

Defendants-Appellees. 

15088 WAH CHANG v. DUKE ENERGY TRADING
Appeal from the United States District Court

for the Southern District of California

Robert H. Whaley, District Judge, Presiding

Argued and Submitted

April 10, 2007—Pasadena, California

Filed November 20, 2007

Before: Harry Pregerson, Ferdinand F. Fernandez and

Pamela Ann Rymer, Circuit Judges.

Opinion by Judge Fernandez;

Dissent by Judge Pregerson

WAH CHANG v. DUKE ENERGY TRADING 15089
COUNSEL

Edward A. Finklea, Cable Huston Benedict Haagensen &

Lloyd, LLP, Portland, Oregon; Richard H. Williams, Lane

Powell PC, Portland, Oregon, for the plaintiff-appellant. 

15090 WAH CHANG v. DUKE ENERGY TRADING
Gordon P. Erspamer, Morrison & Foerster LLP, Walnut

Creek, California, for defendants-appellees Transalta Energy

Marketing (U.S.), Inc., Transalta Energy Marketing (California), Inc., IDACORP, Inc., Idaho Power Company, and IDACORP Energy L.P.; David M. Jacobson, Dorsey & Whitney

LLP, Seattle, Washington, for defendants-appellees Avista

Corporation, Avista Energy, Inc., and Avista Power, LLC.;

Joel B. Kleinman, Dickstein, Shapiro, Morin & Oshinsky,

Washington, D.C., for defendant-appellee Duke Energy Trading and Marketing, L.L.C.; Michael J. Kass, Pillsbury Winthrop Shaw Pittman LLP, San Francisco, California, for

defendant-appellee Dynegy Power Marketing, Inc.; Kenneth

R. Heitz, Irell & Manella LLP, Los Angeles, California, for

defendant-appellee El Paso Electric Company; Steven M.

Wilker, Tonkon Torp, LLP, Portland, Oregon, for defendantappellee Portland General Electric Company; Andrew M. Edison, Bracewell & Giuliani, LLP, Houston, Texas, for

defendant-appellee Powerex Corp.; Thomas L. Boeder, Perkins Coie, LLP, Seattle, Washington, for defendants-appellees

Puget Energy, Inc. and Puget Sound Energy, Inc.; Terry J.

Houlihan, Bingham McCutchen, San Francisco, California,

for defendant-appellee Reliant Energy Services, Inc.; Michael

J. Weaver, Latham & Watkins, LLP, San Diego, California,

for defendants-appellees Sempra Energy, Sempra Energy

Resources, and Sempra Energy Trading Corp.; Jeffrey M.

Shohet, DLA Piper Rudnick Gray Cary US LLP, San Diego,

California, for defendant-appellee Williams Power Company

Inc. 

OPINION

FERNANDEZ, Circuit Judge: 

Wah Chang, a division of TDY Industries, Inc., a California corporation, appeals the district court’s dismissal of its

actions against Duke Energy Trading and Marketing, L.L.C.,

WAH CHANG v. DUKE ENERGY TRADING 15091
Avista Corporation, and a multitude of other companies (all

hereafter referred to as the Energy Companies). Wah Chang,

whose complaints arise out of the energy crisis of 2000-2001,

seeks to recover damages because of the difference between

the rate it was actually charged for electricity, which was a

retail rate based upon the wholesale rate, and the rate that it

claims a fair rate would have been were it not for manipulation of the market by the Energy Companies and others. Like

the actions of those who have come before it, Wah Chang’s

actions must fail. We affirm. 

BACKGROUND

As pled by Wah Chang,1 it purchased electricity for its

plant in Oregon at retail from PacifiCorp, a purchaser of electricity in the wholesale spot market. Under its purchase contract, Wah Chang’s rates were indexed to the wholesale spot

market price at the California-Oregon border so that price

changes in that market were passed on to Wah Chang. 

During the 2000-2001 energy crisis, the wholesale price of

electricity increased substantially,2 and so too did Wah

Chang’s costs. It asserts that the reason for the change was

rates that were artificially increased by the Energy Companies

through their anticompetetive and fraudulent manipulation of

the wholesale markets, which affected customers, like Wah

Chang, who purchased power in the Pacific Northwest market. Of course, the rates in question were, as a matter of law,

1Because the district court dismissed Wah Chang’s complaints pursuant

to Federal Rule of Civil Procedure 12(b)(1), all material factual allegations

in the complaint are taken as true. See Whisnant v. United States, 400 F.3d

1177, 1179 (9th Cir. 2005); United States v. One 1997 Mercedes E420,

175 F.3d 1129, 1130 n.1 (9th Cir. 1999) (per curiam). 

2We have outlined the nature of that crisis previously, and need not

repeat the history here. See California ex rel. Lockyer v. FERC, 383 F.3d

1006, 1009-10 (9th Cir. 2004), petitions for cert. filed, 75 U.S.L.W. 3355

(Dec. 28, 2006), 75 U.S.L.W. 3410 (Feb. 05, 2007); California ex rel.

Lockyer v. Dynegy, Inc., 375 F.3d 831, 836-37 (9th Cir. 2004). 

15092 WAH CHANG v. DUKE ENERGY TRADING
a result of tariffs approved by the Federal Energy Regulatory

Commission under its market-based rate setting approach. We

have described the nature of that approach in our prior forays

into this territory. See, e.g., Pub. Util. Dist. No. 1 of Snohomish County v. Dynegy Power Mktg., 384 F.3d 756, 760-61

(9th Cir. 2004); Lockyer, 383 F.3d at 1012-13. Suffice it to

say that its legal effect is the same as the effect of any other

tariff set by FERC. See, e.g., Snohomish County, 384 F.3d at

761; Pub. Util. Dist. No. 1 of Grays Harbor County Wash. v.

IDACORP Inc., 379 F.3d 641, 650-52 (9th Cir. 2004);

Dynegy, 375 F.3d at 852-53. Because of that, the district court

dismissed these actions. Wah Chang appealed. 

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction pursuant to 28 U.S.C. § 1291. 

We review a district court’s decision to dismiss a complaint

for lack of subject matter jurisdiction pursuant to Federal Rule

of Civil Procedure 12(b)(1) de novo. See Assoc. of Am. Med.

Colls. v. United States, 217 F.3d 770, 778-79 (9th Cir. 2000).

DISCUSSION

[1] While the problems arising out of the 2000-2001 energy

crisis were serious and even scandalous, we have often discussed them at length. Moreover, we have analyzed the

market-based approach and have, effectively, said that the

claims of those who have come before us must be presented

to FERC. Thus, we have turned away purchasers of electricity

when they have attempted to bring a direct federal rate action

against sellers in the position of the Energy Companies. See

Grays Harbor, 379 F.3d at 646-52; Dynegy, 375 F.3d at 849-

53. We have done so on the basis of a number of doctrines,

including the filed rate doctrine. 

[2] That doctrine is a form of deference and preemption,

which precludes interference with the rate setting authority of

WAH CHANG v. DUKE ENERGY TRADING 15093
an administrative agency, like FERC. See Dynegy, 375 F.3d

at 852-53. It is a far reaching doctrine. As we have explained:

At its most basic, the filed rate doctrine provides

that state law, and some federal law (e.g. antitrust

law), may not be used to invalidate a filed rate nor

to assume a rate would be charged other than the rate

adopted by the federal agency in question. The doctrine applies to rates charged by railroads, natural

gas companies, and other interstate operators over

whom federal agencies have exclusive power to set

rates. More relevant here, the Supreme Court has

extended the doctrine to the Federal Power Act and

to electricity rates. 

. . . . 

As further developed, the filed rate doctrine has

prohibited not just a state court (or a federal court

applying state law) from setting a rate different from

that chosen by FERC, but also from assuming a

hypothetical rate different from that actually set by

FERC. 

Transmission Agency of N. Cal. v. Sierra Pac. Power Co., 295

F.3d 918, 929-30 (9th Cir. 2002) (TANC) (citations omitted);

see also Ark. La. Gas Co. v. Hall, 453 U.S. 571, 578-579, 101

S. Ct. 2925, 2931, 69 L. Ed. 2d 856 (1981) (speculation on

what Commission “might have done” is prohibited). And, as

we have explained, the doctrine applies to the market-based

tariffs and rates in question here, even if they were not set in

the traditional way. See Snohomish County, 384 F.3d at 761;

Lockyer, 383 F.3d at 1012-13; Grays Harbor, 379 F.3d at

650-51; Dynegy, 375 F.3d at 852-53. 

[3] The filed rate doctrine’s fortification against direct

attack is impenetrable. It turns away both federal and state

15094 WAH CHANG v. DUKE ENERGY TRADING
antitrust actions;3

 it turns away Racketeer Influenced and Corrupt Organization Act actions;4

 it turns away state tort actions;5

and it even turns away state attempts to assert sovereign

power to commandeer power contracts.6 In short, it turns

away attempts like Wah Chang’s, which necessarily hinge on

a claim that the FERC approved rate was too high and would,

therefore, undermine FERC’s tariff authority through the

medium of direct court actions against the Energy Companies.7

[4] But, argues Wah Chang, its actions differ from others

we have considered because it did not directly purchase

wholesale power. Rather, it was a retail customer. That is an

asthenic distinction at best. If we do not have a retail customer’s case on all fours with this one, we do have a case standing on three legs, with the fourth just a millimeter off the

ground. We have considered a situation where direct retail

(residential and commercial) customers of a utility sued it and

its FERC regulated pipeline subsidiary for alleged antitrust

violations. County of Stanislaus, 114 F.3d at 860. We deter3

See Square D Co. v. Niagara Frontier Tariff Bureau, Inc., 476 U.S.

409, 422, 106 S. Ct. 1922, 1929-30, 90 L. Ed. 2d 413 (1986); Keogh v.

Chi. & Nw. Ry. Co., 260 U.S. 156, 162, 43 S. Ct. 47, 49, 67 L. Ed. 183

(1922); County of Stanislaus v. Pac. Gas & Elec. Co., 114 F.3d 858, 863

(9th Cir. 1997). 

4We have not previously addressed RICO as such. However, we agree

with the Second Circuit Court of Appeals that those actions are barred. See

Sun City Taxpayers’ Ass’n v. Citizens Utils. Co., 45 F.3d. 58, 61-62 (2d

Cir. 1995) (holding that the filed rate doctrine precludes a RICO action);

Wegoland Ltd. v. NYNEX Corp., 27 F.3d 17, 22 (2d Cir. 1994) (same); see

also Taffet v. S. Co., 967 F.2d 1483, 1485-86, 1488 (11th Cir. 1992) (en

banc) (same); H.J. Inc. v. Nw. Bell Tel. Co., 954 F.2d 485, 494 (8th Cir.

1992) (same). 

5

See Dynegy, 375 F.3d at 836-37, 852-53; TANC, 295 F.3d at 932-33.

6

See Duke Energy Trading & Mktg., L.L.C. v. Davis, 267 F.3d 1042,

1056-59 (9th Cir. 2001). 

7We note that Wah Chang is not attacking the contract it had with PacifiCorp; it seeks damages against the Energy Companies only. Cf. Grays

Harbor, 379 F.3d at 652-53 (an attempt to reform a contract might be sustainable, but damages are not available). 

WAH CHANG v. DUKE ENERGY TRADING 15095
mined that all of the customers’ claims challenged “a rate that

a federal agency [FERC] has reviewed and filed.” Id. at 866.

The claims were, therefore, barred by the filed rate doctrine.

Id. at 867. Wah Chang’s claims amount to the same thing. Try

as it may, Wah Chang cannot avoid the fact that it seeks what

amounts to having the courts determine what rates the Energy

Companies should have charged instead of the rates they did

charge. Wah Chang would inevitably drag the courts into a

determination of what rate would be fair and proper. That is

precisely what Wah Chang cannot do. See TANC, 295 F.3d at

930 (holding that courts can neither set a rate different from

that set by FERC nor assume a different hypothetical rate). 

Wah Chang attempts to reinforce its faltering attack on the

filed rate fortress by rushing in snippets from various opinions, but those troops are not up to the task assigned to them.

For example, Wah Chang points to the exception for antitrust

actions by competitors,8 but ignores the fact that we have not

extended that exception to a third-party customer,9 which it

admits it is. And, Wah Chang argues, the doctrine was originally designed to prevent price discrimination among customers,10 which it perceives no danger of here, but, even if its own

perception is not obscured, it ignores the fact that an exceedingly strong prop for the doctrine is preservation of the exclusive role of the regulatory agencies.11 Wah Chang’s actions

would undermine that role. Still, Wah Chang says, it will not

have a separate right of action for damages if it does not have

this one,12 but lack of a damage remedy is not determinative.13

8

See Cost Mgmt. Servs., Inc. v. Wash. Natural Gas Co., 99 F.3d 937,

945-48 (9th Cir. 1996). 

9County of Stanislaus, 114 F.3d at 866; see also, Cost Mgmt., 99 F.3d

at 945 (clarifying that it is speaking about competitors, not customers). 

10See Keogh, 260 U.S. at 163, 43 S. Ct. at 49-50; Verizon Del., Inc. v.

Covad Comms. Co., 377 F.3d 1081, 1086 (9th Cir. 2004). 

11Verizon Del., 377 F.3d at 1086. 

12See Keogh, 260 U.S. at 162, 43 S. Ct. at 49 (alluding to possible separate right). 

13See County of Stanislaus, 114 F.3d at 862-67; see also MontanaDakota Utils. Co. v. Nw. Pub. Serv. Co., 341 U.S. 246, 254-55, 71 S. Ct.

692, 697, 95 L. Ed. 912 (1951); Lockyer, 383 F.3d at 1016. 

15096 WAH CHANG v. DUKE ENERGY TRADING
We will not speculate about other possible remedies against

(or involving) those from whom Wah Chang actually purchased electricity. 

Wah Chang does point to a case allowing relief where sham

protests were filed with an agency in order to delay rate

requests by the plaintiff,14 but neither the rates ultimately

adopted by the agency nor its own procedures were in question.15

That case avails Wah Chang nothing; it is far removed from

the rate claims made here. 

Finally, Wah Chang ululates about FERC’s lax oversight,

but laxness does not indicate, much less establish, that Wah

Chang can turn directly to the courts for rate relief. See

Square D, 476 U.S. at 422, 106 S. Ct. at 1929-30; Lockyer,

383 F.3d at 1016. To permit it to do so would make the vices

suppressed by the filed rate doctrine recrudescent. 

In fine, none of these added points overcomes, or even seriously undermines, the fact that what Wah Chang seeks against

the Energy Companies is a deviation in its favor from the

FERC-accepted wholesale power rates that Wah Chang, by its

own hypothesis, wound up being charged with.16

CONCLUSION

[5] There may well have been a shadow of wrongdoing

brooding over the Pacific Northwest wholesale power market,

but Wah Chang cannot succeed in this forum. The filed rate

doctrine bars its rate-based action,17 just as it has barred the

14Clipper Exxpress v. Rocky Mountain Motor Tariff Bureau, Inc., 690

F.2d 1240, 1250-51, 1254 (9th Cir. 1982). 

15Id. at 1266-67. 

16We are well aware of E.&J. Gallo Winery v. Encana Corp., 05-17352,

slip op. 12523 (9th Cir. Sept. 19, 2007). However, that does not affect our

analysis because, as Gallo acknowledges, FERC’s control over the natural

gas market is quite different from its control over the electricity market.

17Because we hold that the filed rate doctrine completely disposes of

this case, we do not address the issues of field and conflict preemption. 

WAH CHANG v. DUKE ENERGY TRADING 15097
similar actions brought by other victims of the 2000-2001

energy crisis. Perhaps Wah Chang can hope to obtain relief

for some of its alleged damages, but it cannot realize that

hope in this litigation. 

AFFIRMED. 

PREGERSON, Circuit Judge, dissenting: 

These cases require us to decide whether the filed rate doctrine bars the claims of retail electricity consumers who do not

directly challenge FERC’s established rates. Because I believe

we should not extend the reach of this flawed doctrine, I dissent. 

The majority holds that the filed rate doctrine bars the

claims of Wah Chang, a retail consumer of electricity. The

filed rate doctrine, a doctrine of agency deference, prohibits

courts from invalidating FERC-established rates. California

ex rel. Lockyer v. Dynegy, Inc., 375 F.3d 831, 852-53 (9th

Cir. 2004). Pursuant to this doctrine, we have required those

who contest a filed rate to first bring their claims before

FERC. See, e.g., Pub. Util. Dist. No. 1 of Snohomish County

v. Dynegy, 384 F.3d 756, 762 (9th Cir. 2004); California ex

rel. Lockyer v. FERC, 383 F.3d 1006, 1012 (9th Cir. 2004).

In this case, however, the plaintiff is not directly contesting a

filed rate, and it is not clear that FERC has jurisdiction to hear

Wah Chang’s claims. 

I.

Wah Chang, a chemical manufacturer with a plant in Oregon, contracted with PacifiCorp, its local electricity utility, to

provide electricity for its plant. Under the terms of the agreement, the price of electricity was indexed to spot market

wholesale prices at the California-Oregon border, as reported

15098 WAH CHANG v. DUKE ENERGY TRADING
by the Dow Jones California-Oregon Border Electricity Price

Index (“Dow Jones COB Index”). Wah Chang alleges that the

Defendants engaged in illegal practices that artificially raised

electricity prices throughout the Pacific Northwest, including

at the delivery points considered by the Dow Jones COB

Index. 

Wah Chang did not purchase electricity from the Defendants, nor does Wah Chang challenge any filed rates. Instead,

Wah Chang alleges that (1) the Defendants’ illegal market

manipulations artificially increased filed rates, (2) these filed

rates influenced the Dow Jones COB Index, (3) Wah Chang’s

contract with PacifiCorp tied energy prices to the Dow Jones

COB Index, and thus (4) Wah Chang paid higher energy

prices as a result of the Defendants’ illegal market manipulations.1

Wah Chang is not asking the court to calculate what the

filed rates should have been but instead is seeking acknowledgment that the Defendants’ fraudulent actions and anti-trust

market manipulations adversely affected Wah Chang’s retail

1

I am also aware of E. & J. Gallo Winery v. Encana Corp., ___ F.3d

___, 2007 WL 2713126 (9th Cir. 2007). One of the issues presented in E.

& J. Gallo was whether all the rates reported in the natural gas indices

were authorized by FERC. The court conducted an in-depth analysis of the

Natural Gas Policy Act of 1978, Pub.L. No. 95-621, 92 Stat. 3352 (codified as amended at 15 U.S.C. §§ 3301-3432 (1994)), and the Wellhead

Decontrol Act of 1989, Pub.L. No. 101-60, 103 Stat. 157, to determine

that certain rates reported were not FERC-authorized. Thus, the court held

that the plaintiff, a retail purchaser of natural gas, was not barred from

bringing damages claims to the extent that they were based on rates

derived from transactions that were not subject to FERC’s jurisdiction. 

Here, the issue presented is different. It is not whether the Dow Jones

COB Index included reports of market rates that were not authorized by

FERC; the issue is whether the Defendants’ illegal practices affected filed

rates, in turn influencing the Dow Jones COB Index. For this reason, and

because FERC’s control of the natural gas market is different from its control over the electricity market, I agree that E. & J. Gallo does not control

the outcome of this case. 

WAH CHANG v. DUKE ENERGY TRADING 15099
contract with PacifiCorp. Although Wah Chang alleges injury

resulting from the Defendants’ actions, its claims arise out of

a retail contract between Wah Chang and PacifiCorp, and not

from a wholesale contract between Wah Chang and any of the

Defendants.2 Thus, Wah Chang’s claims do not fall directly

under the purview of the filed rate doctrine because Wah

Chang is not seeking a judicial review of the validity of the

filed rate, nor is Wah Chang asking the court to establish what

the filed rate should have been.

II.

We have deferred to FERC cases arising out of the 2000-

2001 energy crisis where the cases involved evaluation of

FERC-established filed rates. FERC’s jurisdiction in such situations is clear. It is not clear, however, that FERC has jurisdiction over Wah Chang’s claims. 

Under the Federal Power Act (“FPA”), FERC has jurisdiction over facilities engaged in “the transmission of electric

energy in interstate commerce and [ ] the sale of electric

energy at wholesale in interstate commerce.” 16 U.S.C.

§ 824(b)(1).3 However, “[r]etail sales of electricity and wholesale intrastate sales are within the exclusive jurisdiction of the

States.” Duke Energy Trading & Mktg., L.L.C. v. Davis, 267

F.3d 1042, 1056 (9th Cir. 2001). 

2The majority suggests that the present case is controlled by County of

Stanislaus, 114 F.3d 858, 863 (9th Cir. 1997), in which we held that the

filed rate doctrine barred customers’ antitrust claims against a public utility and its pipeline subsidiary. The present case is distinguishable.

Although the plaintiffs in County of Stanislaus were also retail consumers

of a public utility, they directly challenged a filed rate. Id. at 863. By contrast, Wah Chang alleges it was injured because its retail contract with

PacifiCorp was indexed to the Dow Jones COB Index, not to a specific

filed rate. 

3The federal government could regulate retail sales and wholesale intrastate sales under its expansive Commerce Clause power. Congress has not

chosen to do, however, but has limited FERC’s reach to interstate transmission of electricity and wholesale interstate transactions. 

15100 WAH CHANG v. DUKE ENERGY TRADING
Wah Chang purchased power for its chemical manufacturing facility from PacifiCorp, its local electric utility. This

transaction was a retail intrastate purchase, not a wholesale

interstate transaction subject to FERC’s regulatory oversight.

Wah Chang did not contract with the Defendants and does not

seek a refund of filed rates. Therefore, it is not clear that

FERC could entertain Wah Chang’s claim for relief.4 When

FERC does not have jurisdiction over a claim, the rationale

for the filed rate doctrine does not apply. 

III.

The majority argues that granting Wah Chang relief will

necessarily require the court to determine what the filed rate

should have been. Maj. Op. 15095-96. But, there is no need

to do that to calculate damages in this case. 

For example, Wah Chang suggests that the District Court

could calculate a monetary remedy based on the difference

between the Dow Jones COB rate and an existing alternate

uncorrupted rate under which Wah Chang could have purchased power. Wah Chang contends that if it had not executed

the retail contract tying prices to the Dow Jones COB Index,

it would have purchased power from PacifiCorp under a

default retail tariff established by the Oregon Public Utilities

Council (“OPUC”). Thus, the District Court could calculate

Wah Chang’s damages based on the difference between the

rates Wah Chang paid under the retail contract with PacifiCorp and the rates it would have paid under the OPUC default

retail tariff. This method of computing damages would not

require the District Court to calculate what the appropriate

rate should have been absent the Defendants illegal conduct.5

4Although the Defendants argue that Wah Chang intervened in related

FERC proceedings, the majority denied a request that we take judicial

notice of those proceedings. Therefore, we cannot determine whether

FERC has agreed to hear any of Wah Chang’s claims. 

5This is but one example of a potential damage calculation a district

court could consider on remand. Wah Chang also asserts damage claims

based on consequential damages, calculation of which would not necessarily involve examination of any rates. 

WAH CHANG v. DUKE ENERGY TRADING 15101
IV.

In sum, Wah Chang’s position as a outsider to the chain of

transactions flowing from FERC rates is important in three

respects. First, because Wah Chang did not contract with any

of the Defendants, it is not clear that Wah Chang could pursue

its claim before FERC. Second, because Wah Chang is not a

customer of a regulated entity, an award of relief to Wah

Chang does not raise the specter of price discrimination

among competing customers. Third, because Wah Chang did

not purchase power from the Defendants, it does not seek, and

would not benefit from, a refund of a filed rate. 

Wah Chang did not directly participate in transactions regulated by FERC and does not seek to invalidate a filed rate

approved by FERC. Nonetheless, the majority invokes the

filed rate doctrine to avoid impinging on FERC’s authority to

regulate wholesale interstate power sales. I do not agree that

Wah Chang’s claims would require a court to review filed

rates approved by FERC. 

One other important point: the original purpose of the filed

rate doctrine is to ensure that all those who compete in the

same market and transfer their products by rail are charged at

the same rate. The doctrine has been extended to prevent price

discrimination in the electricity industry. See Mont.-Dakota

Utils. Co. v. Nw. Pub. Serv. Co., 341 U.S. 246, 251-52 (1951).

The purpose of the filed rate doctrine is not to protect companies engaging in illegal anti-trust manipulative practices. 

I would reverse the district court’s dismissal and remand

for further proceedings.

15102 WAH CHANG v. DUKE ENERGY TRADING