Message-ID: <2329005.1075851641664.JavaMail.evans@thyme> Date: Wed, 12 Sep 2001 13:12:35 -0700 (PDT) From: susan.mara@enron.com To: c..williams@enron.com Subject: Planned Filing on Retro DA Suspension -- good news/bad news Cc: d..steffes@enron.com, richard.shapiro@enron.com, paul.kaufman@enron.com, jeff.dasovich@enron.com Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Bcc: d..steffes@enron.com, richard.shapiro@enron.com, paul.kaufman@enron.com, jeff.dasovich@enron.com X-From: Mara, Susan X-To: Williams, Robert C. X-cc: Steffes, James D. , Shapiro, Richard , Kaufman, Paul , Dasovich, Jeff X-bcc: X-Folder: \Dasovich, Jeff (Non-Privileged)\Dasovich, Jeff\Inbox X-Origin: DASOVICH-J X-FileName: Dasovich, Jeff (Non-Privileged).pst From additional conversations with the Ed Duncan and Mike Day -- It looks as if WE ARE REQUIRED TO SEEK A STAY/REQUEST FOR REHEARING FROM THE CPUC BEFORE WE CAN FILE WITH THE COURTS. We also have to include ALL our points in the CPUC filing or we CANNOT bring them up with the courts. To be able to get to court ASAP, we will want to file Friday AM, presuming a Thursday pm vote for a July 1 or other retro date. That means we need to line up all the joint parties AND get them to file declarations identifying their "irreparable harm". I am working with Jeremy Blachman to see if can get some customers to sign on and with other ESPs -- I have a few who have agreed so far. The attorney is preparing pro-forma declarations that each company/customer would file under protective seal. We need to identify who at Enron would be filing this and get it going. Arter and Hadden is preparing a draft as we speak and I'll be able to get it out right away. Meanwhile, Dan Douglass will be working on preparing the CPUC filing, which will be developed from the court pleading we were working on. Please let me know ASAP. SueMara (415) 782-7802 -----Original Message----- From: Ed Duncan [mailto:EDuncan2@ArterHadden.com] Sent: Monday, September 10, 2001 12:58 PM To: Mara, Susan; JBennett@GMSSR.com Cc: Lin Meyer; douglass@energyattorney.com Subject: RE: Revised Petition and Points and Authorities I am attaching the Joint Petition which assumes that a direct access customer joins Enron. The draft is considerably improved over the draft sent yesterday but it does not take in the comments below. These will be reviewed and integrated into the next draft. I am very concerned about the exhaustion of remedies problem. The jurisdictional statute is PUC section 1768(a). This provision suggests that an aggrieved party must seek a rehearing before the PUC before seeking review by the Supreme Court. A request for rehearing must be made within 15 days after the PUC acts, but there is no time within which the PUC must act. If the PUC agreed to stay the Order, then it seems clear that a rehearing must be sought before applying to the Supreme Court. If the PUC refuses the stay request, then there is a good argument that one of the exceptions to the exhaustion of remedies would apply. This will require that one or all of the Petitioners request a stay by the PUC. Douglass indicates that a stay would be unusual and that such requests normally are not made. In this case, it is probably necessary to circumvent the exhaustion issue. EWD >>> JBennett 09/10/01 11:19AM >>> Sue -- I have reviewed the Petition and associated Memorandum. A couple of general comments: 1. We make the point throughout (page 2 is the first time) that the Commission's action (retroactive suspension) will result in a windfall to the UDCs as they will be paid for services provided by Enron and other ESPs. It is not clear to me that we can make this argument. The commission's order does not indicate that the ESPs have to pay the UDCs the amounts that they have received from their direct access customers for the past two months for energy procurement. The commission could just as easily decide that although customers who entered into DA contracts after July 1 are no longer allowed to continue on DA, they will not go back and undo transactions that have already occurred. 2. In the section of the memorandum discussing why the petition is properly before the court (Section IV), we are discussing why an application for rehearing is unnecessary. We state that in this case a rehearing would be superfluous and unnecessary as "there are no new legal arguments and no additional evidence to be presented." Such argument appears to run counter to our contentions that because of the lack of hearing in this proceeding, the Commission's decision lacks the support it needs or, on the flip side, denied us the opportunity to put on evidence to show the suspension of direct access was unnecessary. 3. In section VI. (e) of the Memorandum arguing that the impairment of contracts ordered by the Commission is not reasonable or appropriate, we state that the Commission's motive is not the announced purpose, that its purpose instead is malevolent as illustrated by the rhetoric directed at out of state energy companies. I don't think such an argument adds anything and, although it maybe true, at this stage it probably is not a good idea to assert that the Commission is purposely hurting the state to get back at the out of state energy companies. Jeanne -----Original Message----- From: Mara, Susan [ Sent: Monday, September 10, 2001 9:46 AM To: jbennett@gmssr.com; rwillia2@enron.com; Kaufman, Paul; jdasovic@enron.com; jsteffe@enron.com; rshapiro@enron.com Subject: FW: Revised Petition and Points and Authorities -----Original Message----- From: Ed Duncan [ < > ] Sent: Saturday, September 08, 2001 12:47 PM To: Mara, Susan Cc: Subject: Revised Petition and Points and Authorities Attached is the revised Petition and Points and Authorities (the Sept. 8 Draft"). This draft has not been redlined because the changes and additions are extensive. Future revisions will be redlined. This draft will be revised to clarify the arguments, toi nclude page references to the exhibits, to include missing authorities, and to eliminate typos, etc. The argument is that the Commission acted contrary to state and federal constitutional guaranties (a de novo standard of review) and that the Commission acted in excess of its authority and contrary to law therebya busing its discretion (a substantial evidence standard of review). You will be provided a revised draft by noon on Monday (Sept 10) which I anticipate will be substantially complete. As soon as it is available, I will send it to you. At that time do you want it also sent to the addressees listed in ypur Friday Email? EWD ********************************************************************** This e-mail is the property of Enron Corp. and/or its relevant affiliate and may contain confidential and privileged material for the sole use of the intended recipient (s). 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