Subject: Status of Monitoring Rojoin Class Action Complaint
From: [email-masked]
To: [email-masked], [email-masked]
Cc: [email-masked], [email-masked], [email-masked], [email-masked]
Date: Thu, 4 Jan 2001 05:52:00 -0800 (PST)

Mike,
 All of us working on the San Diego defense of Enron have been
attempting to watch the other class actions that we know have been filed
related to the California electricity and gas markets.  The reason is that
if there is a state court class action that is broad enough to sweep Enron
in as a doe defendant and that case is not removed, then even if we are
successful in our efforts in Hendricks and elsewhere it may all be for
nought.   The Rojoin case is somewhat different than the rest of the cases.
It was filed December 6th, but we do not whether or when it was served.  It
alleges violations of the PUC, unfair and deceptive practices, false
advertising and fraudulent concealment against ACN Energy et. al arising
from their retail sales of electricity.  In essence, plaintiffs allege in
Rojoin that they were offered electricity at 3.4 cents per KWH when in fact
the true charges to plaintiffs turned out to be about 15 cents per KWH.  One
of the allegations is that plaintiffs were not told of the "sneaky way that
the fees are recalculated."
 In short, the Rojoin complaint as written does not really address
the wholesale market other than to allege that ACN is acting to take
advantage of the "deregulated" electricity market.
 Counsel for one of the other defendants, Chris Healy, has commented
that they have concerns that this case may be the weakest in terms of
removal under a federal question.  If the defendants try to remove that case
and lose it could be harmful or undermine the basis for removal in the other
cases.  As a practical matter, Jean Frizzel, Dave Noonan, Mike Kirby and I
tend to agree with him.  As you know, we are trying to find out who is
representing ACN to see what they are planning to do.
 Since the Rojoin allegations are aimed exclusively right now at the
residential market, we thought it important to bring you up to date.  Unless
EES has a similar fact pattern to that alleged in the complaint (e.g. energy
rates charged to customers as the higher of 3.4 cents per kwh or the
difference between 3 cents and the power exchange price without revealing
what the power exchange price might be), this may be a stand alone case
where it is unlikely that EES would be brought in.
 Mike Kirby and Dave Noonan are looking at the question of whether if
the Rojoin complaint is amended, new defendants would have the ability to
seek removal then.
 Bottom line - given the unique fact pattern of the Rojoin case and
subject to your confirmation that EES does not have a similar fact pattern,
it may make sense to just let the Rojoin case alone and not attempt to
influence counsel for the defense with respect to removal and focus our
efforts on the Berg, Continental Forge and Phillip cases.
 Do you concur?

Thanks
Gary

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