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Enron Mail |
Privileged and Confidential
Attorney Client Communication and Attorney Work Product Overview of Market and Collected Reports Multiple volume set being shipped for arrival tomorrow: Generic Market Materials Specific Reports on what happened last summer Selected FERC filings and order Summary of Conference Call Portland Schedule Monday December 11th 7:00 a.m. Breakfast at Downtown Marriot 8:00 a.m. Attorneys Meeting at EPMI Richard Sanders, Gary Fergus, Steve Hall 11:00 a.m. - End Meeting with Tim Belden and other traders Tuesday December 12th TBA Enron Power Marketing Inc. Served via CT December 6, 2000 We need to calculate dates triggered by service: (removal, preemptory challenge to the judge (170.6), demurrer, etc. No evidence yet that EES has been served. California Attorney General Contact I spoke with Richard Rochman, Deputy Attorney General. He told me that he wanted a contact person for Enron for the AG's investigation. I told him that I would be that contact. He said that in the next few days he would be sending me a letter requesting that documents be preserved. That will be followed in 2-3 weeks by a subpoena. He anticipated a 3 week period to respond to the subpoena. Enron is not the only entity that has been contacted. Summary of Known Investigations CPUC FERC EOB California State Auditor AG Brobeck is assigned to monitor developments in each of this investigations and advise the group. Enron Defense Team Contact Sheet Distributed Please check the contact sheet for the Enron Defense team (distributed by email today) to make sure that all of the information for you is accurate. A more complete contact sheet with Enron witnesses, experts etc. will be distributed in the next few days. Defendants Contact Sheet Dave Noonan, Mike Kirby, Mike Day and I will try to figure out who is representing whom in San Diego. Removal Diversity Mike Kirby pointed out that even if we solved the citizenship issue, it is unlikely that every class member will meet the $75,000 amount in controversy requirement. We also have the preliminary reports that Sempra Energy Resources is a California corporation that is selling electrical energy into the California PX market. (See December 1 status report.) I need to followup and find out if Sempra Energy Resources has outside counsel yet and confirm their understanding on this issue. Federal Question and Related Primary Jurisdiction Argument All of us need to understand the interrelationship between the FERC/PUC/ISO investigations and this class action. There is also the pending challenge to the ISO MMIP's by Enron and others that has been pending for some time. Does the complaint fairly raise or necessarily implicate a federal question. Change of Venue (Additional Research by Peter Meringolo) I have researched case law involving class actions where class members are jurors. I found only two non-California cases, and both involve change of venue motions. See Beech v. Leaf River Forest Prods., 691 So. 2d 446 (Miss. 1997); Toledo Fair Hous. Ctr. v. Nationwide Mut. Ins. Co., 704 N.E.2d 663 (Ohio Ct. Com. Pl. 1996). These cases, however, do not change the analysis required under C.C.P. o 397(b). In Beech, plaintiffs brought a non-class action lawsuit against defendants for polluting two rivers with dioxin. Defendants moved for a change of venue. In addition to evidence of negative publicity, defendants showed that of the 8,909 potential jurors, 750 were plaintiffs in other dioxin cases against these defendants, and "even more were potential class members in a class action brought against these same defendants" in another county. Beech, 691 So. 2d at 450. The trial court granted defendants' motion because the negative publicity and the large number of jurors involved in similar litigation "would prevent the defendants from receiving a fair trial." Id. The Mississippi Supreme Court affirmed, holding that the trial court did not abuse its discretion. Id. Toledo Fair involved a class action against Nationwide Mutual Insurance Company. Nationwide moved for a change of venue, arguing, among other things, that because of the large size of the class "a significant percentage of veniremen would be either class members or relatives of class members and would thus be ineligible to sit as jurors." Toledo Fair, 704 N.E.2d at 664. Plaintiffs argued that Nationwide exaggerated the size of the class. Id. The court denied the motion, holding that because of the dispute regarding the size of the class, it was too early to determine whether an impartial jury could be impaneled. The court clearly left open the possibility for Nationwide to renew this motion. We also discussed the remote possibility of challenging the judge who would hear this case under Section 170.1, for cause, because the Judge would be part of the class. Dave Noonan has had experience in the egg case with this type of challenge. Consolidation Dave and Mike will look at how to manage a consolidation with Judge Amos under San Diego local rules, if that is what we decided to do. Keeping in mind that the 17200 claims are not jury claims, the selection of the judge is critical. Coordination with Defense Counsel Dave and Mike will be responsible with Robin for coordinating among defense counsel in San Diego. Right now, we do not intend to enter any formal defense sharing agreements. Coordination with Plaintiffs' Counsel Dave and Mike with Robin will be responsible for coordinating our efforts with lead plaintiffs' counsel. Analysis of FERC/PUC Enron Positions Robin will work with me to understand from Ron Carroll (FERC) and Mike Day (PUC), what positions that Enron has taken with respect to jurisdiction etc. Experts Cary Mack - Retained Tom Lambert- Dan Lamb to retain by engagement letter and payment. Broad et al. -let go Charles River - Need to confirm with Richard that they have been retained by letter and payment NERA - appears to be conflicted Econ One - Jeff Leitzinger - Robin to confirm that we have retained him with no conflicts. Seabron Adamson- retained (wrote the white paper for Enron before FERC) Larry Ruff- Retained with engagement letter and payment Tom Neches - Dave Noonan to contact and retain. www.thomasneches.com Ken Elzinga (UVA) - Dave Noonan to contact. Trader Interviews See Portland Schedule above. Confirm traders that have left the company. Note John Forney (Day Ahead Desk) is transferring to Enron in Houston effective January 2. Review Trader Tapes Brobeck assigned to review once software identified. Identify FERC/PUC orders rules regulations tariffs etc that apply Brobeck to check with Ron Carroll and Mike Day. Comparison of Conduct to statutes or Rules Pending Public Relations Enron has retained Marathon Communications to assist in Public Relations. A copy of their engagement letter with names etc. is attached. <<Enron.PDF<< Robin is responsible for establishing direct contact. ISO Tapes No action. Canadian Investigation Richard Sanders is person most knowledgeable. Robin with confer with Richard. Mallory Notebook Confirm search results while in Portland. Tim Belden Test of Congestion Richard Sanders and Tim most knowledgeable. Overview of 17200 Claims Two volume set sent. Investigation Summary To be delivered on Saturday. Other Projects Underway Data Resolution - No progress today Fact Memo - I received Steve Hall's memorandum and will incorporate with the materials I have for distribution Saturday. Contracts - Still in review PUC- No contact from Harvey Morris (PUC Thanks Gary ===========================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 - Enron.PDF
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