Updates on Cases to Watch:

  • ETRACOM files answer to FERC complaint and response on FERC lodging of administrative record.
  • DRW and Wilson file motion for reconsideration of order denying summary judgment.
  • City Power files motion for discovery in district court proceeding.
  • Fifth Circuit denies TOTAL motion to expedite its appeal.

ETRACOM files answer to FERC complaint and response on FERC lodging of administrative record.

On October 17, ETRACOM filed its answer to FERC’s complaint in the U.S. District Court for the Eastern District of California. ETRACOM requests the court to dismiss FERC’s complaint and deny all of FERC’s claims for relief. According to ETRACOM, any purported findings, conclusions or determinations asserted by FERC are not based on an evidentiary record developed in a contested proceeding before an objective trier of fact, are irrelevant and unfairly prejudicial, and should not be considered by the court as part of its de novo review of the law and facts. ETRACOM also offers a number of defenses, including that CAISO is responsible for the harms that FERC alleges.

Also on October 17, ETRACOM filed a response to FERC’s filing of a notice of lodging the administrative record. According to ETRACOM, FERC does not include in the administrative record any documents and information that ETRACOM requested but did not receive. ETRACOM requests clarification, should the court accept FERC’s lodging of the administrative record, that the filing is merely a ministerial filing that does not affect the applicability of the Federal Rules of Civil Procedure, does not resolve the fundamental disagreement between the parties regarding the scope and nature of the de novo review proceeding, and does not prejudice ETRACOM’s ability to ensure the availability of applicable procedures and discovery rights.

DRW and Wilson file motion for reconsideration of order denying summary judgment.

On October 14, defendants DRW Investments, LLC and Donald R. Wilson filed a motion for reconsideration of the September 30 decision denying summary judgment in the U.S. District Court for the Southern District of New York. In their motion, the defendants argue that summary judgment should be entered in their favor on all counts because there is no genuine issue of fact for trial. According to the defendants, now that the court has resolved the applicable legal standard to be intent to create an artificial price (as opposed to merely intent to affect price), there is no dispute as to any material fact requiring a jury trial. Separately, on October 17, the defendants sent a letter to the court requesting adjournment of the deadlines in the pretrial scheduling order while the court considers the pending motion for reconsideration.

On October 18, the judge issued an order requiring the CFTC to respond to the defendant’s motion for reconsideration by October 28. The judge also denied the defendants request for an adjournment of the deadlines set forth in the court’s pretrial scheduling order.

City Power files motion for discovery in district court proceeding.

On October 12, City Power filed a motion for discovery in response to FERC’s motion for summary judgment in the U.S. District Court for the District of Columbia. City Power requests that the court deny or hold in abeyance FERC’s motion for summary judgment until City Power has had a fair and full opportunity to conduct discovery in the case. City Power states that it has not yet had an opportunity to obtain the written and testimonial discovery it needs to dispute the arguments in FERC’s motion for summary judgment and related statement of undisputed facts. Accordingly, City Power requests that the court issue a scheduling order with discovery deadlines and, if appropriate, new briefing deadlines for FERC’s motion for summary judgment.

Fifth Circuit denies TOTAL motion to expedite its appeal.

On October 12, the Fifth Circuit issued a short order denying TOTAL’s motion to expedite its appeal. Under the current briefing schedule, TOTAL’s opening brief is due by November 21.