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Enron Mail |
SCE's motion for preliminary injunction seeking an order permitting
recoupment of past and future undercollections was denied today. It appears that the case will now be scheduled for a future hearing after the parties have had a chance to develop any relevant facts and fully brief the legal issues. Below is a summary of what occurred today: ________________________________________________ Motion for Preliminary Injunction: The Court denied SCE's Motion for a Preliminary Injunction on the merits. Judge Lew stated that the Motion was "wholly inappropriate" and that granting it would violate the 11th Amendment. The Court stated that mandatory injunctions, such as the one requested here, are "strongly disfavored" and involve a heightened standard that SCE failed to meet. The Court also said it was constrained by the matters put at issue in the pleadings, and that here the Motion sought relief in excess of that requested in the complaint. While the Court let defense counsel argue for about 15-30 minutes, he mostly appeared disinterested in what they were saying. Plaintiff's counsel did not make any oral argument. The Court also said that this case turns on the Pike County exception, which depends on whether there were alternative markets available; and that if the exception applies, there is no preemption claim. The Court said that there were certain narrow issues before it which is all that it will address, and that the Court is not a "do it all" problem solver for the parties. The Court did not indicate whether it was predisposed to rule for any side. Motion for Order Specifying Facts without Substantial Controversy: The Court granted the motion as to facts 1-10, 12, and denied it as to facts 1, 13. The Court found that these particular facts were not substantially disputed by the defendants, and that further discovery was not needed for the Court to determine them. (Since I do not have a copy of the filings, I am unable to provide further comment. Please let me know if you want me to obtain copies of the filings.) Motions to Intervene: The Court granted the Motions to Intervene (permissive intervention) filed by Los Angeles County and the Utility Reform Network on the ground that their participation would assist the court in hearing the complex matters presented. Motion to Specially Appear: The Court denied the California Attorney General's motion to "specially appear" as inappropriate, but without prejudice to filing a motion for permissive intervention. Criticism of Counsel: The Judge castigated SCE's counsel in several instances. He called the preliminary injunction motion "wholly inappropriate." He criticized SCE's description in briefs of his ruling on January 8, 2001, which the Judge said was "flatly wrong." (He said his January 8 order did not hold that the filed rate doctrine permits the plaintiff to recover recoupment costs.) With respect to the Motion for Order Specifying Facts, he said he was "not fooled" by SCE's "creative arguments." The Court also gave a general admonishment about "spinning" his rulings outside of the courtroom. Reading between the lines, the Judge seemed bothered by media reports. I do not know if the Judge was aware, but SCE had a public relations person mingling in the court room with the many reporters present. Calendar: The Court advanced the March 19, 2001 Scheduling Conference to March 5 at 9:00. The Conference will address matters including discovery practice, motion deadlines and the trial date. The Judge said he would consider SCE's request for an early trial date. However, he also said that it appeared that the primary disputed issues were legal, not factual, and therefore he expected that summary judgment motions would be filed by both sides. Consolidation with PG&E matter: The Court initially expressed concern that the PG&E case was transferred from Northern California, saying he had doubts that this was the proper venue. Later, however, the Judge seemed placated when PG&E's counsel told him that the company had substantial assets in this district. One counsel also told the Court that the parties had stipulated to consolidate the PG&E matter with the SCE matter, though the Court did not say whether he would order consolidation. Impression of Judge: This was my first time observing Judge Lew. He seems extremely strict, straightforward and no-nonsense. He seemed very well prepared on the substance and not at all shy about ruling on the merits. In the SCE matter and preceding non-related matters, the Judge frequently cut-off counsel's arguments to focus on narrow issues of law, and made counsel either answer very specific questions or stop talking completely. Here, the Judge acknowledged this case's importance and said he does not take this matter lightly.
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