What case is this and why is it still in front of Whaley?

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From: 	Dan.Wall@LW.com@ENRON [mailto:IMCEANOTES-Dan+2EWall+40LW+2Ecom+40ENRON@ENRON.com] 
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Cc:	CLDavis@sempra.com
Subject:	Campbell Hearing

There was telephonic oral argument today before Judge Whaley on the filed
rate issues in Campbell v. SDGE.  It went very well.  Judge Whaley began by
asking Campbell to argue first, since "It seems to me you're flying in the
face of the filed rate doctrine."  The bulk of the argument focused on two
issues:  (1) what if anything is the effect of FERC's inability to issue
retroactive rate relief, and (2) (to a much lesser extent) how a class
action based on SDGE customers only avoided the discrimination prong of the
doctrine.  Campbell's argument was ineffective, consisting mostly of his
preferred social policy rather than any law.  His most substantive argument
was that filed rate was based on a res judicata-like theory, and since
market-based rates are not passed on by FERC before they go into effect, and
can't changed be retroactively, resort to the courts was appropriate.

I was not asked any specific questions at first, but was rather just asked
to respond.  I began by advising the court of the July 25th order in which
FERC held that filed rate applied to these market-based rates, then
discussed Norwood, then addressed the res judicata analogy by pointing to
the cases that hold that mere filing, rather than agency review, invokes the
doctrine.  Whaley asked me a couple of questions about retroactive relief,
the most significant of which was along the following lines:  "So what you
are saying is that if, at the end of the day, it is determined that there is
no right of retroactive relief, then that's just like a statute of
limitations or any other limitation on a right or remedy that doesn't effect
FERC's jurisdiction."  I answered affirmatively, stating that the salient
point was that it was within Congress' power to decide how this type of
interstate commerce was to be regulated, and that if Congress imposed
limitations on remedies for illegal behavior, we were all bound by that.  He
seemed content with that answer.

Campbell replied in an argument that was pretty close to saying, "There must
always be a remedy somewhere."  Interestingly, Whaley then asked Campbell a
couple of times whether he would concede Keogh's applicability if there was
a FERC remedy.  I think this was a setup, and Campbell walked into it,
basically saying yes.  Whaley didn't close the trap, but it would not
surprise me if he finds that the existence of a remedy at the agency doesn't
matter, and since Campbell admits that Keogh would bar the claim if there
were a remedy, he's out of court.

Whaley took it under submission and said he would issue an order.  I think
he'll rule very narrowly, stressing that Campbell's is a claim under the
FPA.  I tried to broaden his thinking, arguing that we ought not allow every
plaintiff to attempt to reinvent the regulatory system by dreaming up every
manner of legal attack on filed rates, but I suspect he saw through that and
will rule narrowly.  Anyway, I expect a good result.



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