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Separate civil case against Rymes Propane & Oil moves forward in state court

While one local oil company considers refiling its dismissed civil suit against Rymes Propane & Oil, a second similar case is making its way through state court.

A federal district court judge recently dismissed a case brought against Rymes by Johnny Prescott & Son Oil Co., but a judge in state superior court in March rejected a motion by Rymes to dismiss similar claims made by Epsom-based Davis Fuels. Like Prescott, Davis owner Paul Davis alleges Rymes violated the New Hampshire Consumer Protection Act and the state restraint of trade statute when it significantly lowered its fuel prices last summer.

A lawyer for Davis did not return a message seeking comment, and Rymes Vice President John Rymes was out of town and unavailable for comment. Biron Bedard, the lawyer representing Prescott, said his client may refile its case in state court. Like Prescott’s case, Davis’s complaint is centered on comments made by Rymes during a July 2013 phone conversation with Prescott.

Since Davis doesn’t own a fuel storage and distribution facility, it contracts those services to Prescott, according to court documents. Concord-based Prescott sells fuels to smaller local distributors who deliver it to their own customers, a practice referred to as “through putting.” Davis purchases most of its fuel this way, according to court documents.

When Davis decided to sell propane in the beginning of 2013, he purchased a propane truck and began through-putting via Prescott. Rymes allegedly “expressed displeasure” when he heard about the arrangement, according to court records. This allegedly prompted Rymes to say he would sell heating oil in the Concord area at cost so that Prescott and Davis wouldn’t be able to make a profit. A month later, Rymes advertised heating oil at costs about 50 cents below any other distributors in the capital area, according to the suit.

Davis’s suit prompted Rymes to file a motion to dismiss the two counts. Superior Court Judge Peter Fauver dismissed the restraint of trading count but allowed the consumer protection act charge to progress. The act deems it unlawful for any person to use any unfair method of competition or any unfair or deceptive act or practice in the conduct of any trade or commerce in the state. A nonexhaustive list of CPA violation examples includes “the pricing of goods or service in a manner that tends to create or maintain a monopoly, or otherwise harm competition,” according to the order.

In asking for a dismissal, Rymes argued Davis did not present enough to support the claim that Rymes had intended to create a monopoly or harmed competition through pricing. “The natural implication of these actions is that Rymes Heating Oils priced its heating oil so low either as a means of intimidating competition or with the purpose of outright putting competitors out of business,” wrote Fauver.

“The court cannot say, on the facts before it, that this sort of pricing, as a matter of law, does not tend to create a monopoly or otherwise harm competition as contemplated by the CPA.”

(Iain Wilson can be reached at 369-3313 or iwilson@cmonitor.com.)

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