Message-ID: <23478146.1075860473391.JavaMail.evans@thyme> Date: Mon, 12 Mar 2001 09:21:00 -0800 (PST) From: mary.hain@enron.com To: alan.comnes@enron.com, james.steffes@enron.com, susan.mara@enron.com Subject: EPMI PX Chargeback Complaint Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit X-From: Mary Hain X-To: Joe Hartsoe@Enron, Alan Comnes, James D Steffes, Susan J Mara X-cc: X-bcc: X-Folder: \Mary_Hain_Aug2000_Jul2001\Notes Folders\'sent mail X-Origin: Hain-M X-FileName: mary-hain.nsf I talked to Jim Huemiller (with LeBoeuf Lamb) who is Enron's bankruptcy counsel about whether we need to file with FERC a "Suggestion of Bankruptcy" rather than simply answer the PX's answer. In a bankruptcy case, there is an automatic stay on actions against the debtor or the debtor's property. Joe questioned whether the stay applies to our complaint at FERC because of Section 362(b) of the Bankruptcy code which excepts from the stay proceedings commenced by governmental units for the exercise of police and regulatory power. According to Jim, the Bankruptcy court may oppose a sanction for violation of the stay. He says there is question of whether Section 362(b) applies to our complaint because we initiated it, not FERC. I said it could be argued whether FERC initiated it under the language of Section 206 of the Federal Power Act. While he agreed there may be legitimate arguments in that regard, he said that the FERC would want to delay issuing an order until after the court allowed it to act because its order could be deemed a nullity if it violated the automatic stay. He also said that if the PX did not (contrary to its promise) file to except the FERC's proceeding from the stay, two things could happen. EPMI could itself file with the bankruptcy court and/or try to get the Court of establish a trustee in the case. * Apparently, there was a conference call with Elizabeth Sager and others where it was decided that we needed to file this "Suggestion of Bankruptcy." * Since the PX's bankruptcy was filed under Section 11 rather than Section 7 of the bankruptcy code, the PX is still a "debtor in possession" and a trustee is not appointed unless parties request it and prove that one is warranted pursuant to the bankruptcy code.