set out below is a short summary of today's steering committee call.  i have inserted my notes and recollections from the call in bold text into the agenda we used for the call.  in addition you should receive a call-in # from shelby kelley at bracewell for a TFG call at 11:00 am est tomorrow to further address these issues.  i apologize for the inelegance of my typing, but there have been a few things going on today.




We have taken the liberty of proposing an agenda for the 2:30 Steering Committee call.  We do so not to drive the agenda but to attempt to focus us on issues we need to address and to help us organize these calls to make them more efficient.  Please consider this a starting point for an agenda and circulate any changes you would propose.

I. Process issues
   a. Assign clean up of a TFG e-mail list that all should use. 5 min.
vanness will undertake this task and try to develop a "clean " e-mail list. please don't be offended if you get an e-mail seeking to confirm your identity. once developed it will be circulated with a request that all tfg members delete old list and only use this one.
   b. Propose development of official restricted service list. Discuss e-mail service
        problems 5 min.
dan w will move on Monday for the judge and/or staff to require creation and create a restricted service list based upon signed non-disclosure statements. to facilitate you might remember to include your e-mail address in the disclosure statement signature block.

   c. Develop consistent decision procedures for TFG filings/documents.
       (opt in/opt out/consensus?)  15 min.
to minimize confusion over getting on or off of tfg filings and pleadings we agreed to propose the following procedure for the group's consideration.  1. group filings will be circulated as far in advance as possible and the e-mail circulating it will clearly describe it as a draft group filing, and identify when comments must be receive and when it is intended to be filed. 2. a filing becomes a group filing if the steering committee recommends by general consensus.  3. group members can expressly opt out or express partial support or disagreement, but must do so with their own filing.

II. Discuss Process for Finalizing the Joint Stipulation of Issues  20 min.
   a. Designate small negotiating group
   b. Discuss unilateral back-up filing letter
   c. Assignments

there was general consensus in the steering committee that a joint stip could be worked out without much difficulty and that position is reflected in the letter from us to the judge conveying the tfg proposal.  a significant number of the members of the steering committee were comfortable going with something very close to the net purchaser's version.  sandy rizzo and pat godley were delegated the task of meeting with chabot and coordinating with peter berger to seek to reach agreement.

III. Discuss Process for Finalizing Ripple Claims Stipulation  20 min.
   a. Timing and process for shopping around
   b. Back-up position?
   c. Assignments

agreement was reached to begin right away to shop the ripple claim stipulation to the other lead counsel.  paul fox will shop it with chabot and staff, gary bachman will shop it with peter berger.  we agreed to get in front of judge as soon as possible, with or without other party support.

IV. Planning Ahead (in this case that's everything after today)
   a. Responsive case prep. 10 min.
      -  subgroup assignments to flesh out outline
       - assignments of witnesses to outline areas
 parties are encouraged to get ideas and witness suggestions to don kaplan tomorrow.  response to outline has been underwhelming so far and the clock is ticking loudly.  there will be a lawyers meeting/call at bracewell Friday around 12:30, after the group call to begin organizing for preparing the responsive case. there may be a further witness meeting Tuesday, dan watkiss/don kaplan to coordinate.
   b. Rehearing - reports on how parties are proceeding.   5 min.
ron carrol will circulate a detailed outline of a rehearing parties are free to join in. other parties may file their own.  no big tfg effort on this since a number of other issues are raised such as non-jurisdiction etc.
   c. Answer to motion to Permit Appeal.  5 min.
agreed to take a pass(good choice since the judge issued an order within a hour or so of the call)  need to discuss who will argue now that judge wants argument.
   d. Assign a Discovery battle swat team 5 min.
agreed this was a good idea to have a small group ready to address discovery battles such as motions to compel and/or even more requests to avoid disrupting people focused on case prep.  looking for volunteers!!
   e. Assign swat team for motions to strike. 2 min.
agreed this was also a good idea, particularly if the californians come to play.  again looking for leader and volunteers.

V. Clean-up issues
   a. Any JDA issues left? What happens to non-signers? 5 min.
consensus that non-signers can not be in group, with consideration given to entities with a formal approval process so long as they commit they want to sign and are seeking the necessary approval.

   b. Status of Protective Order  2  min.
judge took care of that
   c. Should we seek another pre-hearing conference? for what? 3 min.
judge took care of that too.  actually there was  a discussion that larry acker will bring up with the entire group about pressing the judge on Monday for a more rational process, i will let larry expound here but will state up front that we share his concerns and believe we must raise some of these concerns with the judge.
   d. Any interest in seeking relief from the Commission from the crush of the ridiculous schedule? 2 min. see note above and larry's earlier e-mail, attached(Larry, i hope you don't mind)

Finally, we would like to suggest that we agree to schedule a standing Steering Committee meeting by conference call every day at a fixed time either at the beginning of the day or the end of the day and assign a "note taker" that will prepare a summary report back to the whole group by e-mail.  Things are happening too fast to continue working in a reactive mode.  Thank you for your consideration of these thoughts.
agreed to set a fixed schedule of every other day calls starting next week.  if anyone sees something i forgot or did not get quite right please feel free to add to this message, i never was much of a note taker.  gary

Gary D. Bachman
Van Ness Feldman, P.C.
1050 Thomas Jefferson St., NW
Seventh Floor
Washington, DC  20007
(202) 298-1880
(202) 338-2416 Fax
gdb@vnf.com

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Date: Thu, 16 Aug 2001 10:16:14 -0400
From: "LAWRENCE ACKER" <LACKER@LLGM.COM>
To: dwatkiss@bracepatt.com,	pfox@bracepatt.com,	rcarroll@bracepatt.com,	skelley@bracepatt.com,	danadamson@dwt.com,	jimvasile@dwt.com,	fnorton@morganlewis.com,	jmcgrane@morganlewis.com,	donk@prestongates.com,	cfr@vnf.com,	gdb@vnf.com
Subject: Fatal flaws
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Dear Colleagues-
I am greatly troubled by this case.
The path that it's on places us all in the unseemly position of crafting evasive discovery objections and inadequate responses, not because we are unmindful of our professional responsibilities, but because of the obviously inadequate time afforded to conduct responsible and meangful discovery.  At the same time, we are mindful of the pressure that time creates when we formulate our own discovery and deposition requests.
Notwithstanding our efforts to act in a considered manner, the procedures and current scope of this case forces us to frantically flail about, futilely trying to move an unwieldy process along.  I do not think the path we are on is much of a service to our clients.  Rather, the conduct of discovery is likely to embarrass them politically and without the benefit of a genuinely meaningiful record, the outcome of the case will enable the Commisison to make up any result that fits a public relations agenda without regard to substance.
During the steering committee meeting today, I would like to place on the agenda consideration of:
requesting the judge to suspend discovery and indeed the procedural schedule, and to convene a prompt prehearing conference to change the scope of the case to better conform to the Commission's order and to actually accomplish something.
Just as we all need to have a ripple claims deferred without prejudice, I think specific refund complaints also should be deferred without prejudice, while the case re-focusses on the few questions the Commission directed the judge to determine in this "preliminary " case: (i)  the volume of the transactions, (ii) the identification of the net sellers and net buyers, (iii) the price and terms and conditions of the sales contracts, and (iv) the extent of potential refunds.
The difficulty, of course, is that in a rush to bind potential claimants we sought to make the few who might want refunds commit by filing testimony on the theory that they would constitute the universe of refund claimants and our liability would thereby be restricted.  But this isn't civil litigation involving plaintiffs and defendants.  This is FERC litigation in which the Commission is much more likely to extend whatever findings it makes to everyone anyway.
The last item in the Commisison's list "extent of potential refunds" should not be considered to be subject to specific refund claims advanced when testimony is filed; it should be a market focus and all specific claims should be deferred.
I suggest that no further discovery be required unless the judge has first approved the discovery request in a prehearing conference, which can then consider appropriate standards of scope, burden and ability to respond in light of the brief time available for the case.
I suggest that testimony take the form of descriptions of the operation of the market rather than specific transactions and claims.
If the Commission had anything other than pure political expedience in mind when it directed this hearing it could not have been more than this preliminary approach, and this case ought to go on that track.  Serendipitously, if this approach is undertaken and, after chronicling the fundamental due process problems the current procedures entail (and they are profound), we also will have established a basis for an rehearing issue, --the due process argument.
I look foward to a discussion of this during our conference call.
Regards,
Larry Acker




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 hank you for you consideration.

Lawrence G. Acker
1875 Connecticut Avenue, NW
Suite 1200
Washington, DC  20009-5728
202-986-8016
fax 202-986-8147
e-mail: lacker@llgm.com



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