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Enron Mail |
What case is this and why is it still in front of Whaley?
-----Original Message----- From: =09Dan.Wall@LW.com@ENRON [mailto:IMCEANOTES-Dan+2EWall+40LW+2Ecom+40E= NRON@ENRON.com]=20 Sent:=09Monday, September 10, 2001 12:13 PM To:=09chealey@LUCE.com; jalexander@gibbs-bruns.com; gallen@bakerbotts.com; = bbailey@duke-energy.com; james.beh@troutmansanders.com; PETER.BENZIAN@LW.co= m; BestorG@dsmo.com; ERIK.BLISS@LW.com; jtbrooks@luce.com; heather.brown@wi= lliams.com; david_burns@reliantenergy.com; dbutswinkas@wc.com; echapin@chap= inlaw.com; rcoleman@duke-energy.com; gcopeland@bakerbotts.com; jennifer.cos= ta@neg.pge.com; lcottle@whitecase.com; hugh.davenport@mirant.com; jeffrey_d= avidson@la.kirkland.com; charles.h.dick@bakernet.com; robert.edwards@troutm= ansanders.com; EisenstatL@dsmo.com; dezickson@mwe.com; FallonR@dsmo.com; GF= ergus@brobeck.com; jfrizzell@gibbs-bruns.com; john.gammie@williams.com; sbi= shop@gibbs-bruns.com; alex.goldberg@williams.com; jguzman@nossaman.com; gha= lling@smrh.com; mhamer@graycary.com; scott.harris@nrgenergy.com; jennifer.h= ein@neg.pge.com; jche@dynegy.com; steve.herman@neg.pge.com; lhernandez@luce= .com; thixson@mdbe.com; HolcombB@dsmo.com; thoulihan@mdbe.com; mike-jines@r= eliantenergy.com; KadzikP@dsmo.com; jkarp@whitecase.com; mkass@pillsburywin= throp.com; bkatz@chapinlaw.com; tkennedy@mdbe.com; tkinnear@luce.com; dcast= ro@pkns.com; KleinmanJ@dsmo.com; ernie.kohnke@dynegy.com; llane@graycary.co= m; jleslie@luce.com; mmattes@nossaman.com; mmaxwell@bakerbotts.com; rmcmanu= s@bakerbotts.com; bmerryman@whitecase.com; sydne_michel@la.kirkland.com; mi= llerl@dsmo.com; rmittelstaedt@pillsburywinthrop.com; mmolland@brobeck.com; = tim.muller@williams.com; tanya.murphy@neg.pge.com; jdne@dynegy.com; nnissen= @mdbe.com; djn@pkns.com; connie.packard@williams.com; cmpallenik@duke-energ= y.com; Joe.Paul@dynegy.com; napedersen@jonesday.com; PerlisM@dsmo.com; mary= lou.peters@msdw.com; apickens@gibbs-bruns.com; dpickett@mdbe.com; sraber@wc= .com; james_ransom@la.kirkland.com; breasoner@gibbs-bruns.com; light-kelly@= reliantenergy.com; tony_richardson@la.kirkland.com; mark.robeck@bakerbotts.= com; roppe@scmv.com; jprussell@duke-energy.com; rryland@smrh.com; Sanders, = Richard B.; juneann.sauntry@troutmansanders.com; JENNIFER.SCAFE@LW.com; pet= e_m_schenkkan@reliantenergy.com; pge_et_team@scmv.com; jshohet@graycary.com= ; msmith1@enron.com; msottosanti@smrh.com; tspanos@morganlewis.com; Springe= rJ@dsmo.com; zack.starbird@mirant.com; rsteiner@luce.com; cstewart@Pillsbur= yWinthrop.com; jsturgeon@whitecase.com; ttaylor@smrh.com; jtiffany@pillsbur= ywinthrop.com; dtribble@pillsburywinthrop.com; cvarner@smrh.com; Dan.Wall@L= W.com; MIKE.WEAVER@LW.com; hwiegmann@wc.com; Williams, Robert C.; charles.z= debski@troutmansanders.com Cc:=09CLDavis@sempra.com Subject:=09Campbell Hearing There was telephonic oral argument today before Judge Whaley on the filed rate issues in Campbell v. SDGE. It went very well. Judge Whaley began by asking Campbell to argue first, since "It seems to me you're flying in the face of the filed rate doctrine." The bulk of the argument focused on two issues: (1) what if anything is the effect of FERC's inability to issue retroactive rate relief, and (2) (to a much lesser extent) how a class action based on SDGE customers only avoided the discrimination prong of the doctrine. Campbell's argument was ineffective, consisting mostly of his preferred social policy rather than any law. His most substantive argument was that filed rate was based on a res judicata-like theory, and since market-based rates are not passed on by FERC before they go into effect, an= d can't changed be retroactively, resort to the courts was appropriate. I was not asked any specific questions at first, but was rather just asked to respond. I began by advising the court of the July 25th order in which FERC held that filed rate applied to these market-based rates, then discussed Norwood, then addressed the res judicata analogy by pointing to the cases that hold that mere filing, rather than agency review, invokes th= e doctrine. Whaley asked me a couple of questions about retroactive relief, the most significant of which was along the following lines: "So what you are saying is that if, at the end of the day, it is determined that there i= s no right of retroactive relief, then that's just like a statute of limitations or any other limitation on a right or remedy that doesn't effec= t FERC's jurisdiction." I answered affirmatively, stating that the salient point was that it was within Congress' power to decide how this type of interstate commerce was to be regulated, and that if Congress imposed limitations on remedies for illegal behavior, we were all bound by that. H= e seemed content with that answer. Campbell replied in an argument that was pretty close to saying, "There mus= t always be a remedy somewhere." Interestingly, Whaley then asked Campbell a couple of times whether he would concede Keogh's applicability if there was a FERC remedy. I think this was a setup, and Campbell walked into it, basically saying yes. Whaley didn't close the trap, but it would not surprise me if he finds that the existence of a remedy at the agency doesn'= t matter, and since Campbell admits that Keogh would bar the claim if there were a remedy, he's out of court. Whaley took it under submission and said he would issue an order. I think he'll rule very narrowly, stressing that Campbell's is a claim under the FPA. I tried to broaden his thinking, arguing that we ought not allow ever= y plaintiff to attempt to reinvent the regulatory system by dreaming up every manner of legal attack on filed rates, but I suspect he saw through that an= d will rule narrowly. Anyway, I expect a good result. 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