Opinion
Case No. 01-16034 (AJG).
May 9, 2005
CADWALADER, WICKERSHAM TAFT LLP, Edward A. Smith (ES 2461) New York, New York and Mark C. Ellenberg (ME 6927), Washington, DC, SPECIAL COUNSEL TO THE REORGANIZED DEBTORS.
SCWABE, WILLIAMSON WYATT, Raymond S. Kindley, OSB #96491, Alex I. Proust, OSB # 92515, Portland, OR, COUNSEL TO PUBLIC UTILITY DISTRICT NO. 1 OF GRAYS HARBOR COUNTY, WASHINGTON.
WHEREAS, on October 15, 2002, Public Utility District No. 1 of Grays Harbor County, Washington ("Grays Harbor") filed two Proofs of Claim numbered 16301 and 18683 (together, the "Claims"); and
WHEREAS, Claim No. 16301 is against Enron Power Marketing, Inc. ("EPMI") for unliquidated damages in excess of $500,000 that Grays Harbor claims to have suffered for the reasons set forth in Claim No. 16301; and
WHEREAS, Claim No. 18683 is against Enron Corp. ("Corp.," and together with EPMI, the "Debtors") for unliquidated damages "in excess of . . . $20,000,000, plus interest" which Grays Harbor claims it suffered for the reasons set forth in Claim No. 18683; and
WHEREAS, on February 9, 2005, Debtors filed an objection to the Claims (the "Objection"), arguing that the Claims should be disallowed on expunged because, inter alia: (1) under the filed rate doctrine, Grays Harbor can have no claim against the Debtors' estates arising from having paid excessive rates for wholesale power without an order of the Federal Energy Regulatory Commission ("FERC") awarding refunds upon a determination that the rates were unjust and unreasonable; (2) FERC has issued no such order; and (3) FERC has issued an order denying refunds to purchasers of power in the Pacific Northwest spot market; and
WHEREAS, on or about March 18, 2005, Grant filed a response to the Objection requesting that this Court deny the Objection and allow the Claims, arguing, inter alia, that a certain FERC proceeding including FERC Docket Nos. EL03-180 and EL03-154 (the "Partnership and Gaming Proceeding") could lead to refunds to Grays Harbor and disgorgement of all of Debtors profits in the Western Interconnect garnered from the beginning of 1997 through 2003; and
WHEREAS, in light of the FERC's recent order in the Partnership and Gaming Proceedings issued on March 11, 2005, the Debtors and Grays Harbor agree that the hearing on the Objection currently scheduled for May 12, 2005 should be adjourned; and
WHEREAS, until and following the FERC's issuance of a final ruling in the Partnership and Gaming Proceedings, the parties expressly reserve all substantive and/or procedural objections and/or rights they may have before the Bankruptcy Court.
NOW THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by and between the undersigned parties and their respective counsel that: (1) the Objection shall be held in abeyance until FERC enters a final order in the Partnership and Gaming Proceedings: (2) Debtors shall reserve for the Claims as provided in Article XXI of the Supplemental Modified Fifth Amended Plan of Affiliated Debtors Pursuant to Chapter 11 of the Bankruptcy Code, confirmed on July 15, 2004; and (3) this Stipulation shall not apply to Proof of Claim No. 9173 filed by Grays Harbor.
SO ORDERED.