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Enron Mail |
Richard:
Do you have any thoughts on this? Carol ---------------------- Forwarded by Carol St Clair/HOU/ECT on 05/05/2000 09:28 AM --------------------------- Carol St Clair 04/28/2000 01:47 PM To: Richard B Sanders/HOU/ECT@ECT cc: Subject: FW: ETA Comments - Arbitration Language Richard: Could you please take a look at point #6. This is the online counterparty who had requested in their arbitration language that only monetary damages are available as a remedy in any arbitration proceeding and that under no circumstances shall specific performance be an available remedy against them. Please let me know what you think. Thanks. carol ---------------------- Forwarded by Carol St Clair/HOU/ECT on 04/28/2000 01:44 PM --------------------------- "Patton, Joyce E - LP-7" <jepatton@bpa.gov< on 04/19/2000 05:55:35 PM To: "'Carol.St.Clair@enron.com'" <Carol.St.Clair@enron.com< cc: "Lamb, William - PTF-5" <wdlamb@bpa.gov< Subject: FW: ETA Comments - Arbitration Language Carol: My comments are shown in CAPS below. Once we have agreed on the edits to the Online Agreement, I am assuming that you will provide a revised version of the agreement for me to review -- is that correct? I should be able to respond very quickly once our final power rates record of decision is sent to the printer (May 5). Thanks. Joyce -----Original Message----- From: Carol St Clair [mailto:Carol.St.Clair@enron.com] Sent: Tuesday, March 07, 2000 2:45 PM To: jepatton@bpa.gov Subject: ETA Comments - Arbitration Language Joyce: Per my earlier e-mail message, I have had a chance to discuss your proposed arbitration language with our litigation manager. We can accept your proposed new language with the following chnages: 1. From our language in the ETA, we need to keep in the provisions regarding treble, exemplary and punitive damages. This is Enron's current policy. I ASSUME YOU ARE REFERRING TO THE SENTENCE: "ONLY DAMAGES ALLOWED PURSUANT TO THIS AGREEMENT MAY BE AWARDED AND THE ARBITRATORS SHALL HAVE NO AUTHORITY TO AWARD TREBLE, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND UNDER ANY CIRCUMSTANCES REGARDLESS OF WHETHER SUCH DAMAGES MAY BE AVAILABLE UNDER THE LAWS OF THE STATE OF NEW YORK AND/OR THE FAA OR AAA." THIS IS OK AND CAN BE INCLUDED IN MY SUGGESTED DISPUTE LANGUAGE IN THE PARAGRAPH THAT ADDRESSES REMEDIES. 2. In the first paragraph of your language, we would like to delete the last sentence. THIS IS OK. 3. With respect to the selection of the arbitrators, we would like to keep our language that each party can select 1. We have no problem going with your language on selecting the third from a list. THIS IS OK. 4. We cannot agree that monetary damages are the exclusive remedy. How would we enforce the confidentiality provisions? We need some other way to be able to seek non-monetary remedies for those types of breaches. THIS MAY BE OUR ONLY STICKING POINT. GENERALLY SPEAKING, THE APPROPRIATE REMEDY FOR A BREACH OF CONTRACT CLAIM IS A MONETARY REMEDY. IN A BREACH OF CONTRACT CLAIM AGAINST THE U.S., THE U.S. COURT OF FEDERAL CLAIMS HAS JURISDICTION (28 U.S.C. 1491). SPECIFIC PERFORMANCE IS NOT A REMEDY AVAILABLE AGAINST THE UNITED STATES BECAUSE SOVEREIGN IMMUNITY HAS NOT BEEN WAIVED FOR SUCH RELIEF. [I DO NOTE THAT YOU DID NOT OBJECT TO THIS LANGUAGE IN MY PROPOSED DISPUTE LANGUAGE SO I ASSUME YOU MAY ALREADY RECOGNIZE THAT FACT.] SIMILARLY, THERE IS NO GENERAL JURISDICTION FOR THE U.S. COURT OF FEDERAL CLAIMS TO GRANT INJUNCTIVE RELIEF IN BREACH OF CONTRACT CASES. BONNEVILLE IS NOT AMENABLE TO (NOR MAY IT BE LEGALLY AUTHORIZED TO) ENTER INTO CONTRACTS THAT WOULD PROVIDE ARBITRATORS WITH AUTHORITY BEYOND THAT WHICH CONGRESS INTENDED TO BE APPLICABLE TO FEDERAL AGENCIES. I CANNOT ASCERTAIN FROM YOUR COMMENT WHETHER YOUR CONCERN IS THE FACT THAT BONNEVILLE IS A FEDERAL AGENCY AND SUBJECT TO THE FREEDOM OF INFORMATION ACT. IF THAT IS YOUR CONCERN, I WOULD LIKE TO OFFER LANGUAGE THAT COULD BE ADDED TO YOUR CONFIDENTIALITY PROVISION THAT MAY PROVIDE A GREATER LEVEL OF COMFORT THAT INFORMATION THAT ENRON DEEMS CONFIDENTIAL IS NOT DISCLOSED WITHOUT AN OPPORTUNITY FOR ENRON TO RESPOND: "SUBJECT TO BONNEVILLE'S OBLIGATIONS UNDER THE FREEDOM OF INFORMATION ACT (5 U.S.C. 552, AS AMENDED), THE PRIVACY ACT OF 1974 (5 U.S.C. 552a), THE TRADE SECRETS ACT OF 1988 (18 U.S.C. 1905), AND ANY OTHER APPLICABLE FEDERAL LAWS, BONNEVILLE SHALL TREAT AS EXEMPT FROM PUBLIC DISCLOSURE ANY TRADE SECRETS AND COMMERCIAL OR FINANCIAL INFORMATION FURNISHED PURSUANT TO THIS AGREEMENT PROVIDED THAT IT IS PRIVILEGED OR CONFIDENTIAL AND IS SO DESIGNATED BY ENRON. IN THE EVENT A THIRD PARTY SEEKS DISCLOSURE OF SUCH INFORMATION UNDER ANY APPLICABLE FEDERAL LAW, BONNEVILLE SHALL PROMPTLY NOTIFY ENRON OF SUCH EFFORT, AND ANY OPPORTUNITIES FOR ENRON TO PROTEST SUCH DISCLOSURE. BONNEVILLE SHALL USE ITS REASONABLE EFFORTS TO AVOID DISCLOSURE OF ANY PRIVILEGED OR CONFIDENTIAL COMMERCIAL INFORMATION." I look forward to hearing from you. My number is 713-853-3989. Carol
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