Antitrust Law Daily Wrap Up, ANTITRUST—D.S.D.: South Dakota wind farm organizers’ Sherman Act and other claims blew away years ago, (Nov 18, 2025)

By Justin Marcus Smith, J.D.

Sherman Act causes of action accrued in 2011 and 2014 and were presently timed-out, but pleading deficiencies with respect to monopoly power unilateral conduct also called for dismissal for failure to state a claim.

Wind farm organizers could not pursue claims against a High Plains regional power cooperative and its affiliates for multiple reasons, but mainly because the claims became stale during years of earlier litigation, held the federal district court in Sioux Falls, South Dakota. The Sherman Act and civil racketeering claims were time-barred and ill-pleaded. The court did not have federal jurisdiction over six of the ten counts pursuant to Public Utilities Regulatory Policy Act (PURPA) because the claims were as-applied challenges. The court also noted res judicata and other problems with the complaint (Mattson v. Rosebud Electric Cooperative, No. 3:25-cv-03008-RAL (D.S.D. Nov. 17, 2025)).

Background. According to the allegations of the complaint, Thomas Mattson at least partly owned Prelude LLC and had been planning to build 12 wind farm qualifying facilities (QFs) in South Dakota. To that end, Prelude attempted to secure a power purchase agreement with defendants Rosebud Electric Cooperative, Grand Electric Cooperative, Basin Electric Power Cooperative (Basin), Moreau-Grand Electric Cooperative, Inc.

Basin was the regional generation and transmission rural electric cooperative headquartered in Bismarck, North Dakota. Basin allegedly had all-requirements power supply contracts with 19 cooperatives on both the eastern and western interconnections of the United States. Many of those cooperatives allegedly had their own all-requirements contracts with distribution rural electric cooperatives. Defendants Grand and Rosebud and non-party Rushmore Electric Power Cooperative (Rushmore) had all-requirements contracts with Basin, and defendant Moreau-Grand had an all requirements contract with Rushmore.

Mattson and Edward Dostal (Dostal), an interested land owner, complained the defendants engaged in a coordinated scheme to obstruct Prelude’s QFs. Specifically, the plaintiffs alleged the defendants provided false avoided cost rates; rejected valid power purchase agreements; denied interconnection and transmission access; and concealed critical data. This allegedly caused the loss of 23 QFs. The plaintiffs also alleged the defendants enforced anti-wind contract provisions in direct conflict with federal law. Throughout the complaint, the plaintiffs alleged the defendants engaged in obstruction by various means from 2009 to the present. The plaintiffs said they fully complied with the Public Utilities Regulatory Policy Act (PURPA) and Federal Energy Regulatory Commission (FERC) regulations.

In 2024, Prelude filed a complaint against the defendants with the South Dakota Public Utilities Commission alleging PURPA rate violations, but the Commission dismissed the case. In 2015, Prelude and Dostal then sued Basin, Rosebud, Grand, Moreau-Grand, plus non-parties Butte Electric Cooperative and Rushmore, in South Dakota state court alleging five claims, two for tortious interference with contract and defamation under state law, and three claims under PURPA. Prelude had counsel, but Dostal proceeded pro se. The state court granted summary judgment to the defendants in that matter and dismissed all of Prelude and Dostal’s claims with prejudice.

In 2023, the plaintiffs requested FERC mediation. The mediation failed. In 2024, Prelude, Mattson, and Dostal filed a petition for FERC enforcement against Basin, Rosebud, and Grand Electric under PURPA alleging the cooperatives violated PURPA, but FERC declined to initiate an enforcement action.

Then, in August 2024, Prelude, Mattson, and Dostal filed a pro se complaint against the defendants in the Eastern District of Wisconsin. That court dismissed Prelude for lack of counsel. Prelude then assigned its claims for $1 to Mattson with Mattson signing for Prelude and himself. In April 2025, the Wisconsin federal court dismissed the case for lack of personal jurisdiction.

In May 2025, the plaintiffs filed the present case. The plaintiffs alleged the defendants made inconsistent forum arguments and argued the court should judicially estop them from contesting the jurisdiction of the instant court or that the limitations period had expired in the instant matter. The instant complaint alleged eleven causes of action:

1. interconnection denials in violation of PURPA;

2. false avoided costs in violation of PURPA;

3. purchase power agreement (PPA) rejection in violation of PURPA;

4. pattern of racketeering activity in violation of RICO, which the court liberally construed as alleging a violation of 18 U.S.C. § 1962(c);

5. fraudulent concealment;

6. fraudulent backdating of avoided costs in violation of PURPA;

7. discriminatory PPA penalties in Violation of PURPA;

8. conspiracy in violation of 18 U.S.C. § 1962(d) (RICO);

9. discriminatory rate offers in violation of PURPA;

10. conspiracy to restrain Qualifying Facilities (QF) trade in violation of the Sherman Act; and

11. bad faith and litigation misconduct.

The plaintiffs sought damages, injunctive relief, and a declaratory judgment. They alleged $3.35 billion in losses.

Antitrust claims. The court found dismissal of count 10, the Sherman Act count, appropriate on multiple grounds. In count 10, the plaintiffs alleged Basin engaged in a conspiracy to restrain trade in the market for qualifying facilities through discriminatory rates and exclusionary practices.

The Sherman Act causes of action accrued in 2011 and 2014 were presently timed-out. The court dismissed them with prejudice.

As for whether the antitrust count failed to state a claim under Section 1 of the Sherman Act, the plaintiffs alleged that a single entity, Basin, engaged in “wholly unilateral conduct.” That deficiency alone called for R. 12(b)(6) dismissal.

As for count 10 alleging a Sherman Act Section 2 claim, the plaintiffs did not allege that Basin had monopoly power in the relevant market or willfully acquired or maintained such monopoly power by anticompetitive conduct. This also called for dismissal under R. 12(b)(6).

RICO. Turning to the RICO claims, the court reasoned that even if the limitations clock were to start from the date the alleged perjury occurred, the four-year limitations period would have run on the count 4 issues. The count 4 issues were alleged avoided cost rates, discriminatory rates, and alleged false statements to the state court in 2019.

The plaintiffs’ description of “persisting” behavior made it clear that any more recent behaviors did not involve independent injuries triggering a separate accrual rule. The court also found equitable tolling inappropriate and unwarranted because the plaintiffs knew or should have known of their alleged underlying injuries for the past ten years after the filing of their state court suit in 2015. The count 8 RICO conspiracy claim failed for the same reasons.

As for whether the plaintiffs failed to state RICO claims, they did not adequately plead at least two predicate acts of racketeering. The complaint did not use the words “wire fraud” or “mail fraud.” None of the predicate acts mentioned were listed as qualifying predicate acts under 18 U.S.C. § 1961(1). The complaint also did not even sufficiently allege fraud in connection with rate offers or data requests. The words “transmitted via communications” were deficient to perfect RICO predicate acts. Fraudulent litigation alone could not be a RICO predicate act. Even if count 4 were not timed-out, the court would have had to dismiss it for failure to state a claim.

As for count 8, RICO conspiracy, the plaintiffs failed to plead an injury caused by an overt act of racketeering or otherwise wrongful under RICO in count 4. The plaintiffs accordingly failed to state a claim for RICO conspiracy. Again, even if count 8 were not timed-out, the court would have had to dismiss it for failure to state a claim.

Given that the plaintiffs knew about the conduct alleged to make up the RICO scheme at the time of the previous state case, and depended on the same transactions or occurrences here, the court found res judicata barred them. The court therefore dismissed the RICO claims, counts 4 and 8, with prejudice.

PURPA issues. The court held it had subject-matter jurisdiction over as-implemented PURPA challenges, but lacked jurisdiction over as-applied challenges. As-applied challenges are the exclusive jurisdiction of state courts. Any party wishing to bring an as-implemented challenge must first petition FERC. The party may bring the challenge in federal court if FERC declines to hear the petition. In deciding an as-implemented challenge, a federal court may enter injunctive or other relief as appropriate.

The defendants argued the court lacked subject matter jurisdiction over the plaintiffs’ PURPA claims because the plaintiffs brought as-applied challenges cognizable only in state court. In response, the plaintiffs argued the state court expressly disclaimed jurisdiction over PURPA issues related to data claims. The plaintiffs also argued that FERC’s 2024 declination and its 2025 order finding Basin’s interconnection procedures were non-compliant triggered de novo federal enforcement. The plaintiffs thereby argued the claims were as-implemented challenges within federal jurisdiction.

The court said that if the requested relief focuses on a specific order affecting a QF it is an as-applied challenge; whereas, if the order pertains to the lawfulness of a rule’s general application, it is an as-implemented challenge. FERC provided examples in a policy statement. Generally, plaintiffs bring as implemented challenges when their claims concern an order interpreting a PURPA regulation or announcing a bright-line rule. In contrast, when a nonregulated utility or state commission does not clearly announce a rule in its order, any challenge to the order is an as-applied challenge.

The court analyzed and concluded that count 1, the interconnection denials, specifically impacted the plaintiffs; therefore, it was not an as-implemented challenge. It was an as-applied challenge. Previous courts and the FERC policy statements identified disputes about interconnection as examples of as-applied challenges to be raised in a state judicial forum.

Count 2, alleging the defendants misrepresented avoided cost data in 2013 and later perjured themselves about in state court proceedings, was also an as-applied challenge given that it concerned the calculation of a specific avoided cost rate. It also tracked a FERC policy statement example of an as-applied challenge. This count was also within exclusive state court PURPA jurisdiction.

Count 3, alleging that Basin rejected the plaintiffs’ signed PPAs and sought enforcement of them adjusted for inflation, with damages, also sought enforcement of specific contracts. It, too, was an as-applied challenge outside of federal PURPA jurisdiction.

Count 6, alleging backdated avoided cost rates, was an as-applied challenge because it concerned the calculation of a specific avoided cost rate and also appeared to seek enforcement of specific contracts.

Count 7, alleging that Basin violated PURPA by imposing excessive penalty provisions in proposed power purchase agreements (PPAs) for the plaintiffs’ QFs, appeared to be an as-applied challenge. They alleged Basi refused to negotiate properly and presented a contract with unreasonable requirements.

Count 9, alleging that Basin offered the plaintiffs discriminatory rates and prevented entry into PPAs rendering the plaintiffs’ QFs financially infeasible, seeking damages for lost opportunities or lost wind farms, also revolved around specific negotiations between the parties.

The court accordingly dismissed counts 1, 2, 3, 6, 7, and 9 without prejudice for lack of federal PURPA jurisdiction.

Res judicata. The court held that even if it had PURPA jurisdiction over counts 1, 2, 3, 6, 7, and 9, res judicata would bar review. The court looked to South Dakota law to define the preclusive effect of the prior final judgment against plaintiffs in the state court case.

On the first element, the issues appeared to be identical. They arose out of the same nucleus of facts, and the redress sought was also the same.

The court found the second element also satisfied because prior litigation resulted in a final judgment form a court of competent jurisdiction. The state court had exclusive jurisdiction over the plaintiffs’ as-applied PURPA claims. That court issued a written order and judgment granting the defendants summary judgment on the PURPA claims dismissing them with prejudice.

The court also found the third element of privity satisfied. Despite some variation of the parties, each defendant claiming preclusive res judicata could apply it to the claims of Mattson and Dostal. Mattson had no rights, by assignment, beyond those of Prelude.

The fourth and final element was that the plaintiffs here had a full and fair opportunity to litigate the instant issues in the prior litigation. Prelude and Dostal litigated to conclusion in 2020. Even if the claims were somehow distinct, they were as-applied challenges arising out of the same nucleus of facts. The claims, including the perjury concerns, could have been raised earlier. They were barred now.

Fraudulent concealment. The court found the plaintiffs failed to adequately allege the defendants concealed the plaintiffs causes of action for many of the reasons the court already discussed. The plaintiffs knew about much of the avoided cost data conduct 10 years ago when they sued many of the defendants in state court. The plaintiffs were not entitled to tolling of the limitations period under the doctrine of fraudulent concealment. The court dismissed count 5.

Count 11, which sought sanctions for actions in previous litigation, was not properly before the court because it pertained to alleged conduct in another court. The court dismissed count 11.

Dostal standing. Whether Dostal, a landowner where at least one QF was to be build, had standing or not was questionable. The court held that question was “academic” at this point. None of the claims could survive the motion to dismiss.

Pro se status. Prelude’s alleged assignment of its claims to Mattson did not, at least in this instance, circumvent the requirement that a corporation must have representation of counsel. Although the court denied the defendants’ motion to strike on this point, the court said the case must be dismissed for the reasons already explained.

Fictitious cites. The plaintiffs corrected a filing that may have contained incorrect cites generated by AI. The court said it was disinclined to sanction for improper citations. However, it reminded the plaintiffs to abide by Fed. R. Civ. P. 11(b) in any future filings.

No amendment. The court said the remaining remedies were to appeal or start a new lawsuit because they did not ask for leave to amend in compliance with local rule.

The Case is No. 3:25-cv-03008-RAL.

Judge: Lange, R.

Attorneys: Thomas Mattson, pro se. Christina M. Berish (Thompson Coburn LLP) for Rosebud Electric Cooperative.

Companies: Rosebud Electric Cooperative

Cases: Antitrust RICO SouthDakotaNews