|
|
Enron Mail |
E-MAIL NOTICE
This e-mail message is for the sole use of the intended recipient(s) and may contain confidential and/or privileged information. Any review, use, disclosure or distribution by persons or entities other than the intended recipient(s) is prohibited. If you are not the intended recipient, please contact the sender by reply and destroy all copies of the original message. Thank you. To reply to our E-mail Administrator directly, send an email to Postmaster@mdbe.com or call (415) 393-2000 and delete this email. McCUTCHEN, DOYLE, BROWN & ENERSEN, LLP http://www.mccutchen.com Attached for your comments is a revised complaint in inverse condemnation, with the PX and Reliant as plaintiffs.? I am sending it separately to Susan Rossi, in-house counsel for the PX.? Since our last conference call we've discussed the various forums and pending actions with FERC counsel for Reliant and Enron. My understanding is that the PX wants us to act and will cooperate with us.? Marc, I haven't circulated this to the whole group because I wanted to go through you.? What is the appropriate next step?? A call with the decisionmakers on this issue so that we can make a plan to move forward?? Can we do that Monday or Tuesday? I've set out Reliant's conclusions here.? 1. There is no forum other than California state court in which we can get compensation for the commandeered contracts because of the Eleventh Amendment issue. 2. Filing the inverse condemnation action is not inconsistent with the FERC proceeding in Tucson Electric. 3. Filing the inverse condemnation action is not inconsistent with Duke v. Davis or with any other proceeding anyone may want to bring alleging that the commandeering itself was illegal (e.g. on preemption grounds). 4.? As we discussed, nobody (including PG&E and SCE) wants the Board of Control to be deciding anything if we can avoid it.? We would suggest going along with the PX's suggestion that the bankruptcy court should be staying the Board of Control action because of the interventions of SCE and PG&E, who are taking the position that the compensation should go to them.? Then, we can go forward with the inverse condemnation action in state court (we picked LA as the forum because LA residents are less affected by the energy crisis than most others in the state, and because it's convenient). If PG&E and SCE are permitted to intervene in the state court action, we can stipulate to relief from stay so that it can go forward.? This way, the Board of Control is effectively stayed while the state court action goes forward. 5.? Richard Sanders expressed the very real concern that we don't want SCE and PG&E's defenses to liquidation of the block forward contracts to be decided anywhere but FERC.? We think we should be able to avoid that: since SCE and PG&E have already put the issue squarely before FERC, that defense could be stayed under the primary jurisdiction doctrine pending FERC's decision.? We would argue that the whole case need not be stayed in the meantime, since the governor's duty to compensate holds no matter who is owed the compensation, and any proceeds from PX contracts will be funneled into the Moreno escrow account. 6.? As we also discussed, we can file this complaint in the name of the PX, Reliant, and any other market participants who want to be plaintiffs (we just need names and a few facts to allege for each plaintiff). Or, as someone suggested, if the PX Market Participants Committee is an entity that has standing, it could be filed in that name along with the PX.? Either way, the prayer for relief asks that all funds be deposited in the Moreno escrow account for disposition consistent with FERC's decision in Coral Power. ? - 21315587_2.DOC
|