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Case 2:10-cv-02555-JTM -JPO Document 1 Filed 10/13/10 Page 1 of 20

UNITED STATES DISTRICT COURT


DISTRICT OF KANSAS
AT KANSAS CITY

Case No.
10-CV-2555 JTM/JPO
CLASS ACTION COMPLAINT
RANDY HOWARD, Individually and on Behalf
of All Others Similarly Situated,
COMPLAINT FOR (1) BREACH OF
Plaintiff, CONTRACT; (2) BREACH OF IMPLIED
COVENANT OF GOOD FAITH AND
v. FAIR DEALING; (3) VIOLATION OF
KANSAS CONSUMER PROTECTION
FERRELLGAS PARTNERS, L.P., ACT, K.S.A. § 50-623, et seq.; (4)
FERRELLGAS, L.P., FERRELLGAS, INC., and PROMISSORY ESTOPPEL; AND (5)
DOES 1 through 25, UNJUST ENRICHMENT
DEMAND EOR JURY
Defendants.
Case 2:10-cv-02555-JTM -JPO Document 1 Filed 10/13/10 Page 2 of 20

Plaintiff Randy Howard, by and through the undersigned attorneys, makes the following
allegations and claims against Ferrellgas Partners, L.P., Ferrellgas, L.P. and Ferrellgas, Inc•

(collectively "Ferrellgas" or "Defendant") on behalf of himself, and the proposed class, upon

information and belief, except as to his own actions, the investigation of his counsel, and the
facts that are a matter of public record, as follows:

PRELIMINARY STATEMENT
1. Plaintiff files this class action on similarly situated
behalf of himself and all others
against Ferrellgas for engaging in unfair, unconscionable, deceptive, misleading, and unlawful
conduct in connection with the marketing and sale of propane and related equipment and
services. Specifically, Ferrellgas lures consumers with advertising come-ons touting low prices,
and contracts with consumers over the telephone to deliver propane at reasonable prices, a
promise repeated in a term sheet that plaintiff had to request to receive; but charges prices
materially above market prices.
2. As alleged more fully herein, Ferrellgas promises, orally and in writing, to charge

"our current market price" for home delivery of consumer-grade propane intended for use in

space heating, cooking, or hot water heaters in residences, but, in fact, the prices charged are
well over the national average propane prices or any other reasonable market price.
3. Ferrellgas's conduct has caused it to be sued by the Minnesota Attorney General
for falsely advertising that it would provide consumers with reasonably priced propane.
4. r•a•ntl• was a residential customc• of Ferre!Igas who was charged unreasonable

and exorbitant prices by Ferrellgas without proper and adequate advance notice of such prices,

wi mom
his consent, and in vioiation •" •"
u• t•c
contract.

5. Plaintiff brings this action on behalf of a nationwide class of all of Ferrellgas


residential customers in the United States who were charged for propane or propane-related

services equipment at any


or time on or after October 13, 2007 (the '"Class Period"), and were
not employed by Ferrellgas at the time they incurred such charges.
Case 2:10-cv-02555-JTM -JPO Document 1 Filed 10/13/10 Page 3 of 20

6. Defendant's deceptive trade practices have allowed it to reap millions of dollars


of profit at the expense of the consumers it has misled. This action seeks to restore that money to

consumers, and to enjoin Defendant's deceptive and unlawful practice.


JURISDICTION AND VENUE
7. This Court has jurisdiction over all causes of action asserted herein pursuant to 28

U.S.C. § 1332(d) because the aggregate claims of Plaintiff and members of the Class exceed the
sum or value of $5,000,000, and there is diversity of citizenship between at least one member of
the proposed Class and Defendant.
8. Venue is proper in this District under 28 U.S.C. § 1391(b). Defendant's

headquarters are portion of the events complained of herein, affecting


in Kansas and a substantial
the Plaintiff and class members, occurred in this District, including the planning and origination
of the claimed wrongdoing. Venue is proper pursuant to 28 U.S.C. § 1391(c) because Defendant
conducts substantial business in this District, has sufficient minimum contacts with this District,
and otherwise purposely avails itself of the markets in this District, through the promotion, sale,
and marketing of its services in this District.

PARTIES
9. Randy Howard ("Plaintiff') is a resident of the state of California. In
Plaintiff

response to Defendant's deceptive trade practices, Plaintiff entered into a residential propane
purchasing agreement with Ferrellgas in August 2008 and paid higher than market rates for the
propane.
!0. Defendant Ferre!!gas Partners, I..P. is a Delaware limited partnership located at

7500 wo•ege Boulevard, Suite •vv0, Ovc•a,u Park, •a,•S. The activities of, •ellg•o
Partners, L.P. are primarily conducted through its operating pa•nership, Fe•ellgas, L.P.
Fe•ellgas PaWners, L.P. is the sole limited pa•ner of Fe•ellgas, L.P. with an approximate 99
percent limited pa•ner interest.
Case 2:10-cv-02555-JTM -JPO Document 1 Filed 10/13/10 Page 4 of 20

11. Defendant Ferrellgas, L.P. is a Delaware limited partnership and the operating
partnership of Ferrellgas Partners, L.P., with its headquarters and principal place
of business at

7500 College Boulevard, Suite 1000, Overland Park, Kansas.


12. Ferrellgas Inc., is located in Liberty, Missouri, and operates as a subsidiary and
the general partner of Ferrellgas Partners, L.P. Through Ferrellgas, Inc., the Company manages

its business of transporting, marketing, and distributing propane gas to residential, industrial,
commercial, and agricultural sectors. The Company has more than 590 retail outlets in over 45
states.

t3. Ferrellgas Partners, L.P., Ferrellgas, L.P., and Ferreligas, Inc. operated as a single
enterprise as it relates to the allegations in this Complaint. All three entities are registered to and
do conduct business in this State. Ferrellgas has marketed, distributed, and sold propane to
thousands of consumers in this State. The billing entity on the Ferrellgas invoices is listed
simply as "Ferrellgas" and Plaintiff and Class members are directed to "make check[s] payable
to Ferrellgas".
14. The true names capacities, whether individual, corporate, associate or
and
otherwise, of each of the defendants designated as a DOE are unknown to Plaintiff at this time
and therefore Plaintiff sues Defendants by such fictitious names. Plaintiff will ask leave of the
Court to amend this Complaint to show the true names and capacities of the DOE Defendants
when that information has been ascertained. Plaintiff is informed and believes and thereon
alleges that each of the Defendants designated herein as a DOE is legally responsible in some
manner and !i•!e for the events and happenings herein alleged and, in such manner, proximately

caused harm to Plaintiff as herein further m•g•u.-11

SUBSTANTIVE ALLEGATIONS

A. Background
15. Ferrellgas is a liquefied petroleum gas ("propane") dealer that serves
approximately one million residential, industrial/commercial, portable tank exchange,
agricultural, wholesale, and other customers in all 50 states, the District of Columbia, and Puerto
Case 2:10-cv-02555-JTM -JPO Document 1 Filed 10/13/10 Page 5 of 20

Rico. Ferrellgas operations primarily include the distribution and sale of propane and related
equipment and supplies• Ferrellgas propane distribution business consists principally of
transporting propane purchased from third parties to Ferrellgas propane distribution locations
and then to tanks on customers' premises or to portable propane tanks delivered to nationwide
and local retailers. Ferrellgas market areas for the Company's residential and agricultural

customers are generally rural, but also include urban areas for industrial applications. In the

residential markets, propane is primarily used for space heating, water heating, and cooking.
16. In addition to marketing, distributing, and selling propane, Ferrellgas leases

propane tanks for the storage of propane. If a customer leases a propane tank from Ferrellgas,
that customer is required to use only Ferrellgas propane in filling the tank. See K.S.A. § 55-
1102.

17. Ferrellgas offers consumers two propane delivery options: (1) a "will call"option
under which a consumer must call and request delivery of propane; or (2) a "keep full" option,
under which Ferrellgas periodically delivers propane to the consumer's tank when the Company

estimates that propane will be required. Plaintiff Howard's propane tank was filled under the
°•keep full" option.
18. Prior to filling their propane tanks, Ferrellgas does not disclose the actual price

per gallon it will charge the customer for the propane. The customer is informed of the price of
the delivered propane when the customer receives the periodic Ferrellgas bill. As a result of
Ferrellgas' representations, Ferrellgas residential customers often are surprised (after-the-fact) by
the prices that Fe•e!!gas charges them for propane deliveries, which, as demonstrated below,
exceed industry averages by slgnmcm•t aFflounts.
"•

B. Ferrellgas Deceives Consumers with Representations of Low Propane Prices


19. Ferrellgas leads customers to believe that it charges a fair and reasonable market
price for its propane when in reality it charges consumers prices substantially higher than the fair
and reasonable market price, as reflected in the average prices on record at the U.So Energy
Information Administration ("EIA").

4
Case 2:10-cv-02555-JTM -JPO Document 1 Filed 10/13/10 Page 6 of 20

20. The Company's advertising gives consumers the impression that the Company
charges a fair and reasonable price for its propane, through statements such as the following1:
a) "ARE YOU READY FOR A FILL? Ferrellgas can help you save money

on your next propane fill."


b) "At Ferrellgas, we know that every dollar counts. We are here to give you
great prices and Customer service that won't leave you in the cold."
c) "This winter who are you going to rely on to keep you warm? Call today
for Spectacular Winter Fill Prices."

d) "HAS YOUR CURRENT PROPANE PROVIDER LEFT YOU OUT IN

THE COLD? With local offices in Ely and Virginia, Ferrellgas offers competitive propane
prices
e) "Ferrellgas. Your Propane Connection. Call today and make this call your
last call for great propane prices. Call today and start saving!"
f) "We want you back! New local management. Great prices! Great

Service!"
g) "Tired of paying too much for propane? Here's a price you can warm up

h) "At Ferrellgas, we know every dollar counts. Make the switch to the
dependable propane connection."
21. Through these and other statements, Ferrellgas leads consumers to believe that it

,-• "great nri•'e•" when in reMitv it ehar•e• e•n•umers prices substantiallv hi•her than
market price.
C. Ferrdlgas Contracts To Deliver Propane With Consumers Over The Phone
22. Ferrellgas initiates the lease of the propane tanks and sale and delivery of the

propane via phone conversations with potential customers. Ferrellgas customer service

These advertisements and others are reported in the October 9, 2009, complaint filed by
Minnesota Attorney General Lori Swanson against Ferrellgas, alleging deceptive and fraudulent
practices in advertising goods and services. See Exhibit A.
Case 2:10-cv-02555-JTM -JPO Document 1 Filed 10/13/10 Page 7 of 20

representatives quote an "initial fill" introductory rate (the "First Fill Special") to the potential
customer. If the potential customer consents to this introductory rate, Ferrellgas employees

arrive at the customer's home, install the tank, and "fill" the tank with propane.
23. In 2008, Plaintiff Howard moved into his new house in Yucca Valley, California.

The house had previously been subject to foreclosure and therefore there was no propane service

at the time of sale. Plaintiff Howard decided to order propane and lease a propane tank from
Ferrellgas because Ferrellgas advertised low prices. In the initial conversation with the
Ferrellgas representative that handled PlaintifFs order, the representative stated that the first fill
would occur at an introductory rate and that subsequently the price of propane would be billed at
market price.
24. Upon information and belief Ferrellgas representatives read from a script that
requires them to tell prospective clients that Ferrellgas charges market prices for propane after
the initial fill.
25. Several days after the initial contact with a customer, Ferrellgas mails a billing
invoice to the customer which lists the First Fill Special including the number of gallons of
propane that were distributed to the customer and the total price of those gallons.
26. After requesting service from Ferrellgas, on August 27, 2008, Ferrellgas
employees installed a 250 gallon propane tank on Plaintiff's property and supplied an initial 50
gallons of propane. On September 5, 2008, Fe•ellgas delivered an additional 167.60 gallons of
propane to Piaintift:
9"7 The nrie.e •c•r
g•llnn (•f propane, the metric most useful to customers, is not listed

on Ferrellgas bills anu customers rrmst thc• cto•


the *"
c
divide *•"
t,,•
total p•ce of the propane by the
number of gallons listed on the Billing Summary to know the price per gallon that they are being
charged.

a Propane tanks are typically only filled approximately 80 to 90 percent to allow room for
vapors.
Case 2:10-cv-02555-JTM -JPO Document 1 Filed 10/13/10 Page 8 of 20

28. On September 9, 2008, Ferrellgas issued a billing invoice to Plaintiff for the
217.60 gallons of propane delivered, charging a total First Fill Special price of $458.92 or $2.11

per gallon. Plaintiff paid this bill in full on September 19, 2009.
29. Because the tank is filled as full as possible on the initial visit, under either the
"will call" option or the "keep full" option, the next propane fill will not be necessary until one

to three months, or even longer, after the initial fill. After this next propane fill, the second bill is

mailed to the customer a few days later. It is not until the customer receives the second bill, and
calculates the price per gallon (as described above), that the customer is aware of the non-"First
Fill Special" propane price that Ferrellgas is charging at that time.
30. On December 3, 2009, Ferrellgas delivered 57.80 gallons of propane to the
Plaintiff. On December 7, 2008, Ferrellgas issued a bill for the December 3 delivery, charging
$272.18 for 57.80 gallons of propane, or $4.71 per gallon. Plaintiff Howard had been a
Ferrellgas customer for over three months by the time he received this second bill. At this time,
the national average price charged for home delivery of consumer grade propane was $2.37 per
gallon. Appalled by the high price, Plaintiff Howard called Ferrellgas and disputed the charge.
In response, Ferrellgas agreed to modify the price to $2.85 per gallon and the Company rebilled
the Plaintiff on December 21, 2008. The reduced price was still more than the national average.
31. Ferrellgas knowingly charges inflated prices for propane, hoping that these
overcharges will go undetected by its residential customers. Even when customers have
complained about Ferrellgas's exorbitant and arbitrary prices, the Company often has failed to
make nrc•ne•r
nnd taarnn|ete price adjustments and the adjustments it does make still results in an

above-market price.
D. Ferrellgas's "Master Agreement" Promises to Charge the Current Market Price for
Propane
32. As alleged above, Ferrellgas contracts to sell propane to consumers over the
telephone at market prices.
Case 2:10-cv-02555-JTM -JPO Document 1 Filed 10/13/10 Page 9 of 20

33. Upon information and belief, as a matter of policy, Ferrellgas does not send a

written agreement to customers unless one is requested.


34. Plaintiff Howard did not receive a Master Agreement or any written contract at
the time of any of the deliveries or with the initial bill. In fact, Plaintiff did not receive the

Master Agreement until after he contacted Ferrellgas in 2010 to again complain about the

pricing.
35. requesting the written agreement, Plaintiff received a document titled
After
Master Agreement for Propane Sales and Equipment Rental ("Master Agreement").

36. The section relating to price is consistent with the agreement made over the
telephone with Plaintiff and other customers, it promises to deliver propane at market prices:
Purchase Price. You will pay our current market price for Propane at the
time the Propane is delivered to you if you have Bulk Service or Cylinder
Exchange Service, or at the time the Propane flows through your meter if
you have Meter Service.

37. Under the Unitbrm Commercial Code, incorporated in the Kansas Uniform
Commercial Code, a party that agrees to make a sale but has kept the specific price open is
obligated to charge a reasonable price or a price established in good faith. See K.S.A § 84-2-

305.
38. Ferrellgas propane prices, which substantially exceed the average market price (as
more fully detailed below), are not reasonable and are not established in good faith.
39. By its own terms, the Master Agreement does not purport to require express
acceptance:

• ,e terms and conditions of this •o•- Agreement will be accepted by


w•cn one ok mc
•ulluwmg occurs: •,i) you request or •vt •1• ¢

propane, service or equipment •om us; (2) you pay for delivery of propane,
se•ice or equipment •om us; or (3) you permit Propane or equipment
obtained •om us to remain on your prope•y for more than thi•y (30) days
aRer your receipt of this Agreement. If you do not wish to be bound by
this Agreement, please contact Ferrellgas within thirff 00) days after
your receipt of this Agreement and terminate service. The te•s of this
Agreement also will apply to sales of refined Nel products. [Emphasis
added.]
Case 2:10-cv-02555-JTM -JPO Document 1 Filed 10/13/10 Page 10 of 20

40. With this language, this document is deemed by Ferrellgas to take effect only
through the passive acts of the Ferrellgas customers. This passive acceptance does not require
any signature by the customer.

41. However, Ferrellgas customers do not receive the Master Agreement, a non-

negotiable adhesion agreement, unless they request it and then well after their first delivery of

propane and subsequent to entering into a binding contract over the telephone to deliver propane

at market prices.
42. The mere keeping goods past a certain number of days is not
passive act of
sufficient to demonstrate that customers expressly agreed to the terms in the Master Agreement.
Indeed, because the contract was formed before Ferrellgas ships the Master Agreement (if it does
so at all), that Master Agreement must be treated as an offer to modify the terms of the existing

oral contract. See K.S.A. 84-2-209. The contract terms are for the delivery of propane at market
prices, consistent with Ferrellgas's advertising, telephonic conversations, and even the open price
term of the non-binding Master Agreement. Plaintiff, and other members of the Class, did not

accept the proposed modifications to his existing oral contract with Ferrellgas, nor could such
offer terms, as a matter of law, be accepted passively by a failure to act. Reference to the Master
Agreement in this complaint is solely to show consistency on the price terms between oral
contract and the subsequent written offer to modify and/or add terms.

E. Ferrellgas Propane Prices Are Consistently and Materially Above Market Rate
43. National averages for Residential Propane Prices are recorded and published by
•h• •TA •ho statistical and ana!•ica! •encv within the I •_S_ Department Energy. Residential
of

Propane Price is defined by the EIA as the -ofce charged for home "•-•:
u•vcly
of consumer-grade

propane intended for use in space heating, cooking, or hot water heaters in residences. This is the

type of propane delivered to Plaintiff and other class members. The EIA prices reflect refined,
finished propaneready for residential use, not the spot price of propane.
44. Despite Ferrellgas's advertising, promise and agreement that customers will be
charged market rate, Plaintiff was routinely billed unreasonable and/or unconscionable propane
Case 2:10-cv-02555-JTM -JPO Document 1 Filed 10/13/10 Page 11 of 20

prices that materially exceeded the national averages as published by the EIA. The following
compares the price Plaintiff was charged, as reflected in bills sent to him by Ferrellgas, with the

EIA statistics:

Amount Initially
Date of Bill
Billed to National Average Range of Prices as
Plaintiff, Per as reported by EIA Reported by the EIA
Gallon
12/7/2008 $4.71 $2.37 $1.54 to $3.28
2/1/2009 $4.91 $2.32 $1.55 to $3.39
3/17/2009 $2.81 $2.25 $1.46 to $3,01
5/24/2009 $2.82 not reported not reported
10/18/2009 $3.22 $2.10 $1.34 to $2.94

45. prices charged to Plaintiff and


The other class members exceeded even the
national high propane prices, as reported by the EIA, as follows:

Percent By Which
Amount Percent By Which
the Price Exceeds
Date of Bill Charged to
the National
the Price Exceeds the
Plaintiff National High Price
Average
12/7/2008 $4.71 49.70% 30.36%
1/27/2009 $4.91 52.67% 30.96%
3/12/2009 $2.81 20.00% N/A
5/24/2009 $2.82 not reported not reported
10/18/2009 $3.22 34.78% 8.70%

F. Ferrellgas Excessive Termination Fees Prevent Customers from Seeking Better Prices

46. Ferrellgas also inhibits the ability of its residential customers to reject propane
deliveries once the cost of the delivered propane is disclosed to them. If a customer leasing a

Ferrellgas tank wishes to end the service after realizing that Ferrellgas does not live up to its
advertising and contractual obligations, Ferre!lgas charges a "Tank Pick-Up Charge" and other
charges, including a "Tank Pump-Out Charge," as set forth in the Current Charges List that is in
effect at the time of the termination. The Current Charges List is included in the Master
Agreement but the list in the Master Agreement only indicates that these fees will be charged at

10
Case 2:10-cv-02555-JTM -JPO Document 1 Filed 10/13/10 Page 12 of 20

an hourly rate and does not specify what that hourly rate is. Ferrellgas also reserves the right to

not refund the customer for any propane left in the tank at the time of the termination.
47. Ferrellgas customers who lease propane tanks from the Company are
Because

required to buy Ferrellgas propane, these customers must rid themselves of the leased tanks if
they wish to switch to a Ferrellgas competitor. By purporting to charge customers excessive fees
to remove leased Ferrellgas tanks and unused propane, Ferrellgas coerces customers into staying

with Ferrellgas. These excessive fees trap consumers into staying with the Company even
though customers are being charged excessive per-gallon prices.
48. On January 27, 2009, Ferrellgas delivered 79.9 gallons of propane and
subsequently billed Plaintiff $393.03 or $4.92 per gallon. The national average price at this time
was $2.32 per gallon. Plaintiff disputed this high price and was subsequently rebilled at $2.95

per gallon.
49. Perturbed high prices being charged by Ferrellgas, Plaintiff began calling
by the
around to competitors for their propane prices. When he expressed his desire to terminate the

agreement with Ferrellgas, Ferrellgas informed the Plaintiff of the cost of termination, quoting
him a price of $101.00 per hour per man, for a minimum of two men, to pump out the remaining

propane. Ferrellgas also refused to reimburse the Plaintiff for the propane that was remaining in
his tank. Faced with the prospect of paying these high lump-sum costs, Plaintiff had little choice
but to remain with Ferrellgas.
50. Plaintiff continued to be billed at prices higher than the national average. On

A,,•l,•t •(• 9(•(•o e,h•rged $65°00 rental fee for lease of the Ferreli•as •ro•ane
Plaintiff w• a

tanK. in October •00•, Plaintiff disputed another when Ferre,•a• charged •,,•,•m•" o-,¢•.22 per
•.:11
um

gallon at a time when the national average price for propane was $2.10 per gallon.
51. Ferrellgas knowingly and willfully engages in deceptive, unconscionable, and
unlawful business practices that are purposely designed to exploit and mislead its residential

customers, unfairly enhance its ability to charge them excessive prices, hinder the ability of such
customers to comparison shop, and make it financially difficult for them to leave.

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52. Ferrellgas has acted in bad faith, contrary to its duty of good faith and fairdealing
to its residential customers, by charging them prices and fees that were not disclosed, or if

disclosed, by changing the prices and fees without proper or


amount of its adequate notice in a
classic bait-and-switch. To the extent that Ferrellgas's form agreements purport to allow
Ferrellgas to engage in such practices, those contracts are illusory and/or invalid.
53. As a result of these and other deceptive, misleading, unconscionable, and
unlawful business practices and Ferrellgas's knowing concealment, suppression, and omission
of material terms relating to its prices, fees, and service Plaintiff and other class members have
suffered ascertainable damages and losses well in excess of $5,000,000 during the Class Period.

CLASS ACTION ALLEGATIONS


54. Plaintiff brings this class action pursuant to Federal Rule of Civil Procedure 23,
and pursuant to K.S.A. § 50-634(d)(1), on behalf of himself and a Class of all others similarly
situated, consisting of all persons in the United States who purchased propane gas from
Ferrellgas at prices in excess of the national average (the "Class") from October 13, 2007, until
the final disposition of this case (the "Class Period"). Excluded from the Class are Defendant;
officers, directors, and employees of Defendant; any entity in which Defendant has a controlling
interest; the affiliates, legal representatives, attorneys, heirs, and assigns of Defendant; any
federal, state, or local government entity; and any judge, justice, or judicial officer presiding over
this matter and the members of their immediate families and judicial staffs. The members of the
Class are so numerous that joinder of all members would be impracticable. Plaintiff reasonably
estimates that there are thousa_n_ds of purchasers of the product at issue.

55. This Court properly can and •,lomd apply Kansas law to a•1• of the claims and
issues asserted herein. Certification of the Class under the laws of Kansas is appropriate
because:
(a) Ferrellgas has chosen to locate its headquarters in Kansas. The policies
and practices at issue in this action were conceived in Kansas and exported to

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Case 2:10-cv-02555-JTM -JPO Document 1 Filed 10/13/10 Page 14 of 20

wherever Ferrellgas does business. Kansas therefore has an overwhelming interest in

ensuring that Kansas companies do not deceive consumers in, and outside of, Kansas;
(b) Ferrellgas conducted substantial business in and from Kansas; and
(c) A significant number of Class members reside in Kansas.

56. There are questions of law and fact common to the members of the Class that
predominate over any questions affecting only individual members, including:
(a) Whether Ferrellgas breached its contract with Plaintiff and the Class
members;
(b) Whether Ferrellgas breached the implied covenant of good faith and fair
dealing;
(c) In the alternative, whether Defendant should be required under the
doctrine of promissory estoppel to adhere to the Company's promise that it would
charge the current market price for propane;
(d) Whether the Ferrellgas Master Agreement is binding on Ferrellgas
customers;
(e) Whether Ferrellgas violated Kansas Consumer Protection Act, K.S.A. §
50-623, et seq.;

(f) Whether Defendant's representations and conduct were likely to deceive


consumers into believing they would be charged market prices for the propane;

(g) Whether, by its misconduct as set forth herein, Ferrellgas has engaged in
deceptive, un!aw•fial, or unco_n_scio_n_able business practices;
(h) Whether Fen-ellgas Jhas been unjustly enriched;
(i) Whether the members of the Class have been injured by Defendant's
conduct; and
(j) Whether Plaintiff and the Class are entitled to relief, and the amount and
nature of such relief.

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57. The claims of Plaintiff are typical of the claims of the members of the Class.
Plaintiff has no interests antagonistic to those of the Class, and Defendant has no defenses unique
to Plaintiff.
58. Plaintiff will adequately protect the interests of the Class, and has
fairly and
retained attorneys experienced in class and complex litigation.
59. A class action is superior to other available methods for the fair and efficient

adjudication of this controversy for the following reasons:


(a) It is economically impractical for members of the Class to prosecute
individual actions;
(b) The Class is readily definable; and
(c) Prosecution as a class action will eliminate the possibility of repetitious
litigation.
60. A class action will cause an orderly and expeditious administration of the claims
of the Class. Economies of time, effort, and expense will be fostered and uniformity of decisions

will be ensured.
61. Plaintiff does not anticipate any undue difficulty in the management of this
litigation.
62. Plaintiff and the Class expressly exclude any causes of action relating to personal
injury or other bodily harm arising from Defendant's conduct.

FIRST CAUSE OF ACTION


Breach {)f Contract
63. Plaintiff incorporates the above allegations by reference as though fully set forth

herein.
64. Plaintiff and Class inembers entered into wire Ferreiigas *'-• the •': •

delivery of propane. As consideration Ferrellgas promised to deliver and did deliver propane,
and Plaintiff and Class members, as consideration, promised to pay, and did pay, for the propane
and for the lease of the Ferrellgas propane tanks.

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65. Plaintiff and Class members performed their part of those agreements by paying
for the propane and related services, or are excused from performance because of Ferrellgas's
non-performance alleged herein.
as

66. As alleged above, Ferrellgas promised to deliver propane at market prices.

67. In material breach of its contractual promise, Ferrellgas has charged and continues

to charge prices that are well above the national average propane prices or any other reasonable
market price.
68. As a direct and proximate result of Ferrellgas's breach of this material term,
Plaintiff and Class members did not receive the benefit of their bargain and were damaged, in an

amount to be determined at trial.

SECOND CAUSE OF ACTION


Breach of Implied Covenant of Good Faith and Fair Dealing
69. Plaintiff incorporates fl•e above allegations by reference as though fully set forth

herein.
70. Every contract imposes upon each party a duty of good faith and fair dealing in its
performance. Ferrellgas agreements between Plaintiff and Defendant
The contained an implied

covenant of good faith and fair dealing. The covenant requires that neither party to the contract

do anything to infringe upon the other party's rights to the benefits of the agreement, or to
deprive the other party of the benefits of the contract.
71. Defendant breached the implied covenants of good faith and fair dealing
contained in each of the rerre•gas agreements by charging propane prices that sm,•tant_ml:
exceed the average market price.
72. As a direct resm-t of•-'-•
uc•cndunL b
breaches of lm• of e,,•,•,• faith

and fair dealing, Plaintiff and the Class were damaged, in an amount to be determined at trial.

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Case 2:10-cv-02555-JTM -JPO Document 1 Filed 10/13/10 Page 17 of 20

THIRD CAUSE OF ACTION


Violation of the Kansas Consumer Protection Act, K.S.A. § 50-623, et seq.

73. Plaintiff incorporates the above allegations by reference as though fully set forth
herein.
74. Plaintiff and each member of the Class are "consumers" within the meaning of
K.S.A. § 50-624(b).
75. Defendant has engaged in one "deceptive acts or
or more acts characterized as

practices" pursuant to K.S.A. § 50-626, with regard to a "consumer transaction" (as defined in
K.S.A. § 50-624(c)) as set forth above. This wrongful conduct, includes, but is not limited to:
a) the willful use by Ferrellgas, in oral or written representations, of
falsehood or ambiguity as to the price of propane, which is a material fact in the consumer
transaction of purchasing propane, as prohibited by K.S.A. § 50-626(b)(2);
b) the willful failure by Ferrellgas to state the price of propane, which is a
material fact in the consumer transaction of purchasing propane, or the -willful concealment,
suppression, or omission of this material fact, as prohibited by K.S.A. § 50-626(b)(3);
c) the willful failure by Ferrellgas to state the termination costs, which are a
material fact in the consumer transaction of purchasing propane and propane service, or the
willful concealment, suppression, or omission of this material fact, as prohibited by K.S.A. § 50-
626(b)(3); and
d) making false ormisleading representations, knowingly or with reason to

know, of fact, concerning the •-•;o• of the price in mpan "•,• to prices of competitors or

Ferrellgas's own price at a past or future time, as prohibited by K.S.A. § 50-626(b)(7).

• ........... '•" •,-• • for propane delivered •a• the •!l

77. Fe•ellgas violated K.S.A. } 50-626(b)(3) by failing to state the price of propane
provided to a leasing a Fe•ellgas propane tank would be charged at
customer prices £aove the
cu•ent market rate; and by Niling to state the te•ination costs either at the time that the

contract was initiated or in the Cu•ent Charges List in the Master Agreement.

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Case 2:10-cv-02555-JTM -JPO Document 1 Filed 10/13/10 Page 18 of 20

78. Ferrellgas violated K.S.A. § 50-626(b)(7) by making false representations in


advertising that the Company offered competitive prices that will provide savings to a propane
customer; that the Company offered current market rate prices; and that Ferrellgas customers
would be charged the current market rate on future bills.
79. Ferrellgas affirmatively represented to consumers that the Company would
provide market rates for the residential supply of propane.
80. Pricing information is relied upon by consumers in making purchase decisions,
and is fundamental to the decision to purchase propane.
81. Ferrellgas's representations induced PlaintifFs and the Class' purchases of
propane. Had Plaintiff and the Class been informed that these promises would be dispensed
with, thereby allowing Ferrellgas to charge inflated prices, Plaintiff and the Class would never
have purchased propane from Ferrellgas.
82. Plaintiff and Class members have thereby suffered a loss as a result of
Defendant's false statements regarding the Company's pricing of propane. Defendant's
misrepresentations constitute deceptive, unconscionable, and misleading business practices in
violation ofK.S.A. § 50-626 and K.S.A. § 50-627.
83. Defendant's deceptive acts and omissions occurred in the course of selling a

consumer product and have occurred continuously through the filing of this Complaint.

FOURTH CAUSE OF ACTION


Promissory Estoppel, Stated in the Alternative to the First and Second Causes of Action
84. •,lt,fflncorpol•e• each and every allegation set r,,,+,, above as #r, •, fully set

forth herein.
85° Ferreilgas has promises to r•amm•f and •1• the • •

charge the current ..... :•"


•aiKet p•,wc
for propane.
86. Defendant made the promise and caused its employees to make the promise with

the expectation that Plaintiff and the Class would rely upon it.
87. Plaintiff and the Class reasonably relied on the promises made by Fe•ellgas when
purchasing propane Kom Fe•ellgas. These promises thereby induced Plaintiff s and the Class'

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Case 2:10-cv-02555-JTM -JPO Document 1 Filed 10/13/10 Page 19 of 20

purchases of propane. Had Plaintiff and the Class been informed that these promises would be
dispensed with, thereby allowing Ferrellgas to charge inflated prices, Plaintiff and the Class
would never have purchased propane from Ferrellgas.
88. The Defendant's promises were deliberately false.
89. Injustice to Plaintiff and the Class can only be avoided by enforcement of the
promises made by Ferrellgas. One who acts to his detriment on the faith of a promise should be
protected by estopping denial of that promise. Ferrellgas has induced Plaintiff and the Class into
purchasing propane with these promises and therefore Ferrellgas is estopped from dispensing
with these promises.
FIFTH CAUSE OF ACTION
Unjust Enrichment
90. Plaintiff incorporates the above allegations by reference as though fully set forth

herein.
91. Ferrellgas sold propane at higher than agreed to prices.
92. Ferrellgas has been unjustly enriched to the extent it has charged rates higher than

the market rate.

93. Plaintiff, on behalf of himself and the Class, seeks restitution.


PRAYER FOR RELIEF
WHEREFORE, Plaintiff, on behalf of himself and all others similarly situated, prays for
judgment against Defendant as follows:
A. An order certifying this case as a class action and appointing Plaintiff and his
counsel to represent the Class;
individuai restitution to Plaintiff and each member
C. An order requiring • ....... *:

forth above;
D. For reasonable attorneys' fees and the costs of this action;
Eo For statutory pre-judgment interest; and
F. For such other relief at this Court may deem just and proper.

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Case 2:10-cv-02555-JTM -JPO Document 1 Filed 10/13/10 Page 20 of 20

DEMAND FOR JURY TRIAL


Plaintiff hereby demands a trial of his claims by jury to the extent authorized by law.

DATED: October 13, 2010


WALTERS BENDER STROHBEHN &
VAUGHAN, PC

R/Fr•rick Walters KS Dist. #70561


110•0/Main, Suite 2500
Ka@as City, MO 64105
fwYlters@wbsvlaw.com
Telephone: (8 t6) 421-6620
Facsimile: (816) 421-4747

MILBERG LLP
ANDREI V. RADO
arado@milberg.com
ELIZABETH S. METCALF
emetcalf@milberg.com
One Pennsylvania Plaza, 49th Floor
New York, NY 10119
Telephone: (212) 594-5300
Facsimile: (212) 868-1229
ZELDES & HAEGGQUIST, LLP
HELEN I. ZELDES
625 Broadway, Suite 906
San Diego, CA 92101
Telephone: (619) 342-8000
Facsimile: (619) 342-7878

Attorneys for Plaintiff

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