Message-ID: <28206112.1075852735752.JavaMail.evans@thyme>
Date: Fri, 19 Oct 2001 13:51:12 -0700 (PDT)
From: rick.antonoff@cwt.com
To: jhodge@enron.com
Subject: Bethlehem Steel
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X-From: "Rick Antonoff" <Rick.Antonoff@cwt.com>@ENRON
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I sent this to Lisa last night but since she's not in today, you may not
have seen it.
----- Forwarded by Rick Antonoff/NY/CWT on 10/19/01 04:49 PM -----
Rick Antonoff
To: lisa.mellencamp@enron.com
cc: David Mitchell/NY/CWT@CWT
10/18/01 Subject: Bethlehem Steel
08:13 PM
I was able to obtain copies of the petition, utility order and other
pleadings in the Bethlehem case via the court's internet site. I would
like to see the contract(s) that ENA has with Bethlehem to determine
whether there is any basis to deem ENA a utility for purposes of section
366. For our conflicts check, I need to know which Bethlehem company(ies)
the ENA contract is with. As far as I see in the motion, only ENA is
listed as a utility.
Interestingly, in the motion, the debtor states: "Nothing contained herein
shall constitute an admission by the Debtors that a listed entity is a
utility entitled to the protections afforded by section 366 or any other
provision of the Bankruptcy Code." Indeed.
Nevertheless, for the time being, the order does prohibit the "Utility
Companies," which definition includes ENA, from altering, refusing or
discontinuing service to, or discriminating against, the Debtors. While
arguably ambiguous as to whether ENA is rendering a service or whether
closing out the contract is discrimination, prudence dictates complying
with the order until we get it changed.
What I'm thinking as far as strategy is that if we conclude that the
contract is a forward contract, we try to convince Bethlehem's attorneys to
remove ENA from the list of utilities and amend the motion and the order
accordingly. If they don't and the dollars involved in closing out the
contract are significant -- bearing in mind that the order "authorizes" but
does not direct Bethlehem to pay postpetition invoices for services
rendered by the utilities -- then we move for a declaratory judgment that
ENA is not a utility within the meaning of section 366.
Regards.
______________
Rick B. Antonoff
Cadwalader, Wickersham & Taft
100 Maiden Lane
New York, NY 10038
Phone: 212 504-6759
Main Fax: 212 504-6666
Local Fax: 212 993-2539
Mobile: 917 287-6391
Email: rick.antonoff@cwt.com
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