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Enron Mail |
Mike,
All of us working on the San Diego defense of Enron have been attempting to watch the other class actions that we know have been filed related to the California electricity and gas markets. The reason is that if there is a state court class action that is broad enough to sweep Enron in as a doe defendant and that case is not removed, then even if we are successful in our efforts in Hendricks and elsewhere it may all be for nought. The Rojoin case is somewhat different than the rest of the cases. It was filed December 6th, but we do not whether or when it was served. It alleges violations of the PUC, unfair and deceptive practices, false advertising and fraudulent concealment against ACN Energy et. al arising from their retail sales of electricity. In essence, plaintiffs allege in Rojoin that they were offered electricity at 3.4 cents per KWH when in fact the true charges to plaintiffs turned out to be about 15 cents per KWH. One of the allegations is that plaintiffs were not told of the "sneaky way that the fees are recalculated." In short, the Rojoin complaint as written does not really address the wholesale market other than to allege that ACN is acting to take advantage of the "deregulated" electricity market. Counsel for one of the other defendants, Chris Healy, has commented that they have concerns that this case may be the weakest in terms of removal under a federal question. If the defendants try to remove that case and lose it could be harmful or undermine the basis for removal in the other cases. As a practical matter, Jean Frizzel, Dave Noonan, Mike Kirby and I tend to agree with him. As you know, we are trying to find out who is representing ACN to see what they are planning to do. Since the Rojoin allegations are aimed exclusively right now at the residential market, we thought it important to bring you up to date. Unless EES has a similar fact pattern to that alleged in the complaint (e.g. energy rates charged to customers as the higher of 3.4 cents per kwh or the difference between 3 cents and the power exchange price without revealing what the power exchange price might be), this may be a stand alone case where it is unlikely that EES would be brought in. Mike Kirby and Dave Noonan are looking at the question of whether if the Rojoin complaint is amended, new defendants would have the ability to seek removal then. Bottom line - given the unique fact pattern of the Rojoin case and subject to your confirmation that EES does not have a similar fact pattern, it may make sense to just let the Rojoin case alone and not attempt to influence counsel for the defense with respect to removal and focus our efforts on the Berg, Continental Forge and Phillip cases. Do you concur? 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
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