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Enron Mail |
Mark -
Below is what I am proposing as a response to Kal and Andy's concerns over the ICE claim "most liquid." Let me know your thoughts. Thanks. "ATTORNEY CLIENT COMMUNICATION ATTORNEY WORK PRODUCT CONFIDENTIAL COMMUNICATION Kal - I understand the concern raised; however, I am not so sure that the claim made is a "legal" claim. The analysis of whether or not this type of claim can be made is really based upon advertising principals and generally, at least at a federal level, governed by the Federal Trade Commission. The analysis of the validity of the claim is the concern in this arena and would focus predominantly on an analysis of the following items: 1. whether or not this type of language is "puffery" for sales purposes or if it is a claim requiring substantiation 2. what the term "most liquid" is intended to convey (e.g., EOL uses "world's largest" to convey both size and power in the market) 3. how "most liquid" is defined - what standard, measure or industry analysis has been conducted by ICE to establish that "most liquid" has a real meaning and one that, when applied to EOL, would indicate that EOL is not as "liquid" as ICE. 4. whether or not the use of the term "most liquid" is misleading, thereby causing any harm Notice that the advertising analysis will not focus on perceived damage by Enron based upon restricted access. This analysis, at least to me, would be a separate and distinct issue. If Enron is not being given full access to the site simply because there is no equity ownership, the analysis of damage to Enron would be moreso a possible antitrust type analysis by the Department of Justice/courts rather than a false advertising type analysis. This analysis would be based upon issues related to the ownership structure of the site (including the sharing of profits and fees amongst owners), the policies and procedures established by ICE to ensure fair treatment to all who access the site and the effect restricted access may have upon competition (e.g., other sites being able to enter the market and compete). The last point would also have, as a component, the extent to which Enron and other non-owner users would not have a secondary or alternative source for the information. Needless to say, it may be difficult under the antitrust type analysis for Enron to claim harm when EOL boast of being the "world's largest website for global commodity transactions." Further, if other non-EOL sources are available to Enron to obtain the same information contained within ICE, it would also be difficult for Enron to show harm as a result of limited access." Mark Senior Counsel, ENA Phone: 713-345-8897 Facsimile: 713-646-3940 E-Mail: Mark.Greenberg@enron.com
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