We will likely have seek a petition for rehearing first -- but ,if there is any question,we should try to be as agressive as the law may allow.
-----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 <JBennett@GMSSR.com> 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 [ <mailto:Susan.J.Mara@ENRON.com]>
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 [ <mailto:EDuncan2@ArterHadden.com>
< <mailto:EDuncan2@ArterHadden.com>> ]
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


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