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Enron Mail |
FYI.
Here is the last draft of the responses to FERC's questions. It is still missing a section in response to Question 2 that Mary is drafting. I believe that Ron has minimized the concerns that I had from the prior draft. He is also swinging for a preemption home run ball in the San Diego litigation. In response to Question No. 4, he is asking FERC to specifically to find that it is preempting investigations of last summers market, find that the rates charged were just and reasonable and determine that sellers are immune from refund under any possible legal theory. Anything less will chill the market for further investment and exacerbate the problem. There is some risk if we ask for this finding and do not get it, that fact will diminish arguments we might have in state or federal court that there has been preemption. As a practical matter, however, our preliminary research has shown that without a very specific intent to preempt anti-trust laws, for example, the preemption argument may be difficult to make anyway. Ron and Mary clearly believe this is the one chance we have to get FERC to make a finding. If FERC does make the finding, it will undoubtedly be appealed. I do not know how to assess the likelihood that FERC will make the requested finding, and if they do whether it will be upheld on appeal so it is difficult for me to do a risk benefit analysis. If we are going to go this route, I would take out the conditional phrase on page 7 in the word version that reads: "if they were not in violation of market rules established under the ISO's and PX's tariffs." Talk to you tomorrow. Thanks Gary -----Original Message----- From: Nancy Pickover [mailto:npickover@bracepatt.com] Sent: Thursday, November 30, 2000 4:26 PM To: Jeffrey Watkiss; gfergus@brobeck.com; acomnes@enron.com; jhartso@enron.com; jsteffe@enron.com; mary.hain@enron.com; smara@enron.com Subject: Draft Responses to Chairman Hoecker's Questions As you will see, the attached draft incorporates Sue's and Mary's drafts as well as additional text from me. The comments filed on Nov. 22 are literally one foot high. If the Commission is serious about getting an order out by mid-December, it is thus highly unlikely that it will carefully review any of the Comments other than the major players (CPUC, Gov. Davis, the UDCs). I do believe, however, that Chairman Hoecker, the Commissioners and the high level Staffers will be more likely to review the responses to Hoecker's questions. Thus, if we are to have any realistic hope that they will focus on our arguments, I thought it advisable to use these responses as an advocacy piece rather than a mere discovery response. Hence, I suggest a lengthy rather than minimalist response. I thought that Gary's concern in an earlier email about Alan's rebuttal to the J&K piece was well taken. I have thus taken out all references to a need to do more analysis on the market abuse issue, and recast his write-up as simply a rebuttal of the J&K Study. Finally, the draft (which I have included in Word and WP formats/ the WP format may paginate more accurately) is no doubt in need of wordsmithing; any suggestions would be well appreciated. I would like to file this tomorrow, so please call or email me as early in the morning as possible. (I am not sending this email from my computer, so please create a new email to me when you respond rather than simply hit the "reply" button to this email.) Talk to you tomorrow (Friday). Ron ======================================================= This email message is for the sole use of the intended recipient(s) and may contain confidential and privileged information. Any unauthorized review, use, disclosure or distribution is prohibited. If you are not the intended recipient, please contact the sender by reply email and destroy all copies of the original message. To reply to our email administrator directly, send an email to postmaster@brobeck.com BROBECK PHLEGER & HARRISON LLP http://www.brobeck.com - 0134802.01 - 0134839.01
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