ML021570007
| ML021570007 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 05/15/2002 |
| From: | Cole A Heller Ehrman White & McAuliffe, LLP, Pacific Gas & Electric Co |
| To: | Office of Nuclear Reactor Regulation, US Federal Judiciary, Bankruptcy Court, Northern District of California |
| References | |
| 01-30923 DM, 94-0742640 | |
| Download: ML021570007 (9) | |
Text
1 MARIE L. FIALA (No. 79676)
PETER J. BENVENUTTI (No. 60566) 2 ADAM M. COLE (No. 145344)
HELLER EHRMAN WHITE & McAULIFFE LLP 3 333 Bush Street San Francisco, California 94104-2878 4 Telephone: (415) 772-6000 Facsimile: (415) 772-6268 3W5 5
Special Counsel for Debtor in Possession 6 PACIFIC GAS AND ELECTRIC COMPANY 7
8 UNITED STATES BANKRUPTCY COURT 9
NORTHERN DISTRICT OF CALIFORNIA 10 SAN FRANCISCO DIVISION 11 12 In re Case No.: 01-30923 DM 13 PACIFIC GAS AND ELECTRIC Chapter 11 Case 14 COMPANY, a California corporation, Judge: Hon. Dennis Montali 15 Debtor. Date: July 2, 2002 Federal I.D. No. 94-0742640 Time: 1:30 p.m.
16 17 18 CERTIFICATION OF ADAM M. COLE IN SUPPORT OF HELLER EHRMAN WHITE & McAULIFFE LLP'S THIRD INTERIM FEE APPLICATION FOR 19 ALLOWANCE AND PAYMENT OF COMPENSATION AND REIMBURSEMENT 20 OF EXPENSES FOR THE PERIOD DECEMBER 1, 2001, THROUGH MARCH 31, 2002 21 22 I, ADAM M. COLE, certify as follows:
23 1. I am a shareholder of the law firm of Heller Ehrman White & McAuliffe LLP 24 ("Heller Ehrman"), Special Counsel to Pacific Gas and Electric Company ("PG&E"), debtor 25 and debtor-in-possession in the above referenced bankruptcy case. I am a member in good 26 standing of the State Bar of California and am admitted to practice before this Court. I have 27 personal knowledge of the following matters unless stated to be on information and belief, 28 and as to those matters I believe them to be true., I submit this Certification in support of Heller Ehrman White & CERTIFICATION OF ADAM M. COLE VI/SO 0 McAuliffe LLP THIRD HELLER EHRMAN INTERIM FEE APPLICATION Case No. 01-30923 DM.
1 Heller Ehrman's Third Interim Fee Application (the "Application") for Allowance and 2 Payment of Compensation and Reimbursement of Expenses for the Period December 1, 3 2001, Through March 31, 2002 (the "Application Period").
4 2. Attached as Exhibit A is a chart identifying, and providing applicable hourly 5 billing rates for, all Heller Ehrman attorneys, paralegals and other nonlawyer professionals 6 who performed services on PG&E matters during the Application Period, and whose time is 7 reflected on the timesheets attached to the accompanying Time Records Exhibit. Attached 8 as Exhibit B are biographies of all timekeepers who recorded time during the Application 9 Period.
10 3. (a) I have read the Application. (b) To the best of my knowledge, 11 information, and belief, formed after reasonable inquiry, the compensation and expense 12 reimbursement sought in the Application are in conformity with the Bankruptcy Court's 13 Guidelines for Compensation and Expense Reimbursement of Professionals, except as 14 otherwise set forth in paragraphs 4-14 below. Paragraphs 4-14 below also address a number 15 of specific issues raised in the Court's Memorandum Decision Regarding Applications for 16 Interim Compensation of Professionals (Dec. 12, 2001) ("December 12, 2001 Order").
17 (c) The compensation and expense reimbursement requested are billed at rates and in 18 accordance with practices no less favorable than those customarily employed by Heller 19 Ehrman and generally accepted by Heller Ehrman's clients. Indeed, Heller Ehrman's rates 20 to PG&E both for lawyer and paralegal time reflect a discount from Heller Ehrman's normal 21 rates. I am informed and believe that the non-discounted hourly rates of the attorneys and 22 paralegals practicing at Heller Ehrman are consistent with those prevailing in the San 23 Francisco Bay Area community for similar services of lawyers and paralegals of reasonably 24 comparable skill and reputation.
25 4. There are certain respects in which Heller Ehrman's practices regarding 26 timekeeping, billing and expense reimbursement as reflected in the Application are not, or 27 may not be, in accordance with the Guidelines. These are described in the following Heller 28 paragraphs. In each instance, the practice reflected in the Application is in accordance with Ehrman White & CERTIFICATION OF ADAM M. COLE I/S/O - 2 McAuliffe LLP THIRD HELLER EHRMAN INTERIM FEE APPLICATION .
Case No. 01-30923 DM
1 the practice followed in the course of Heller Ehrman's long representation of PG&E prior to 2 its bankruptcy filing and is no less favorable to PG&E - and in many instances is more 3 favorable - than the general practice applicable to Heller Ehrman's clients.
4 5. File Management. Heller Ehrman paralegals perform a significant amount of 5 file management services, which are necessary to Heller Ehrman's effective representation 6 of PG&E in the multiple matters on which Heller Ehrman has been engaged. A brief 7 description of the magnitude and complexity of the PG&E cases is necessary to understand 8 the importance of having trained paralegals manage the files in these cases. Heller Ehrman 9 currently is handling 25 separate matters for PG&E. Those matters are being handled by 36 10 lawyers in five Heller Ehrman offices (San Francisco, Washington D.C., Seattle, Portland,
.11 and Los Angeles). The PG&E matters currently are one of the largest engagements at 12 Heller Ehrman (based on time-value of services performed).
13 6. Representing PG&E effectively in the PG&E matters requires a high degree of 14 organization, coordination and centralization. Large quantities of filings, decisions, 15 correspondence and other documents, both in hard copy and electronic form, are generated 16 on a daily basis. Numerous lawyers in multiple offices rely on centralized files to run these 17 cases. If each lawyer and his or her secretary were left to maintain their own files, 18 organizational chaos would result. Lawyers constantly would be looking for documents, 19 duplicating others' efforts, and wasting time.
20 7. It is the established and customary practice of this firm to have paralegals 21 handle file management tasks in very large and complex cases such as the PG&E matters.
22 Unlike clerical staff such as secretaries, paralegals are assigned to a specific matter or set of 23 matters, and develop familiarity with the substantive issues in those matters. Paralegals
.24 therefore are equipped to make the often difficult judgment calls about how to manage files 25 in a complex case. For example, in the PG&E cases, a technical report by the Federal 26 Energy Regulatory Commission ("FERC") may pertain to several energy regulatory matters 27 and need to be filed in more than one set of files. Only a professional or paraprofessional Heller 28 with knowledge about the substance of the cases could make a determination as to which Ehrman White & CERTIFICATION OF ADAM M. COLE I/S/fO 3 McAuliffe LLP THIRD HELLER EHRMAN INTERIM FEE APPLICATION Case No. 01-30923 DM
1 files are involved. In addition, file management in large cases such as the PG&E matters 2 requires specialized training in indexing and organizational systems.
3 8. Where possible, Heller Ehrman assigns routine clerical tasks to secretaries and 4 other personnel who do not bill their time to the client. Secretaries also manage individual 5 lawyers' files. However, as explained above, the demands of very large and complex cases 6 such as the PG&E matters requires centralized filing handled by paralegals. Heller Ehrman 7 customarily bills its nonbankruptcy clients for the services of paralegals to provide file 8 management services of the type performed here, and our nonbankruptcy clients customarily 9 pay for those services. These are precisely the types of services for which Heller Ehrman 10 billed PG&E, and PG&E paid, for many years before the Chapter 11 case.
11 9. It is not feasible for secretaries to perform the type of file management tasks 12 called for by the PG&E matters. The demands of the shared secretarial position in a large 13 law firm precludes secretaries from devoting the time to be trained in and perform the tasks 14 required to accurately manage the files of a large case.
15 10. Heller Ehrman's general policy (which I understand is consistent with the 16 norm in large San Francisco Bay area law firms) is, wherever possible, to assign three 17 lawyers to each secretary. Thus, a secretary assigned to a lawyer on a PG&E matter will be 18 responsible for many matters wholly unrelated to PG&E. Each addition of a lawyer to a 19 secretary's work load requires that the secretary devote less time to PG&E matters. In 20 addition, because of the time constraints created by assisting multiple lawyers, secretaries 21 are unable to develop specialized knowledge of the substance of the cases, which is crucial 22 for effective file management. Furthermore, Heller Ehrman secretaries generally are not 23 trained in the use of indexing systems, such as "LegalKey" software, and complex case file 24 management techniques.
25 11. As a further logistical impediment to secretaries handling file management, 26 the volume of documents in the PG&E matters requires that files be kept in separate 27 workrooms. The workrooms are located away from the secretarial work stations. Those Heller 28 responsible for file maintenance must respond to numerous requests from many lawyers to Ehrman White & CERTIFICATION OF ADAM M. COLE I/S/O - 4 McAuliffe LLP THIRD HELLER EHRMAN INTERIM FEE APPLICATION Case No. 01-30923 DM
1 obtain and file materials in the Workrooms. It would be prohibitively disruptive to have 2 secretaries repeatedly leaving their work stations to go to the workrooms.
3 12. Intra-Office Conferences. Heller Ehrman strives to staff matters as 4 efficiently as possible. Heller Ehrman must, however, balance that objective against its 5 overriding objective of providing effective legal representation to PG&E. Heller Ehrman's 6 judgment regarding how it staffs matters seeks to accommodate these potentially competing 7 objectives.
8 13. In representing PG&E, Heller Ehrman's attorneys participate in a significant 9 number of intra-office conferences. In most instances, those conferences involve a small 10 number (two to four) of attorneys and/or paralegals, but on some occasions more attorneys 11 and/or paralegals are involved. On some occasions, one or more representatives of PG&E 12 also are involved. Heller Ehrman tries to minimize the number of intra-office conferences 13 and client conferences at which more than one timekeeper is involved. However, the 14 matters for which Heller Ehrman has been engaged are extraordinarily complex, both 15 legally and factually. In order to represent PG&E effectively, Heller Ehrman's lawyers 16 must coordinate and share expertise. Indeed, one of the reasons Heller Ehrman can provide 17 effective services to PG&E is because it has multiple lawyers with specific areas of 18 expertise. Approximately 36 attorneys and 35 paralegals performed services for PG&E 19 during the Application Period. Intra-office conferences enabled those lawyers and 20 paralegals to avoid duplicating efforts. Intra-office conferences also enable senior attorneys 21 to supervise and direct the efforts of more junior attorneys and paralegals, assist in analysis 22 and formulate strategy, and synthesize their expertise in the many diverse areas of practice 23 implicated in this engagement. Heller Ehrman believes that the intra-office conferences 24 reflected in the Application have been essential to enable Heller Ehrman to perform 25 effective legal services for PG&E, and that full compensation should be allowed for all 26 timekeepers attending those conferences.
27 14. Attendance of More Than One Heller Ehrman Professional at Hearings.
Heller 28 In the December 12, 2001, Order, the Court stated that it will "require justification for the Ehrman White & CERTIFICATION OF ADAM M. COLE I/S/O - 5 McAuliffe LLP THIRD HELLER EHRMAN INTERIM FEE APPLICATION Case No. 01-30923 DM
1 appearance of more than one pilofessional at any court hearing. In other words, an applicant 2 must identify each hearing involving multiple professionals and justify specifically the use 3 of professionals at each such hearing." Order at p. 7, lines 21-25. The following chart 4 identifies all hearings during the Application Period attended by more than one Heller 5 Ehrman professional and provides the justification for the attendance of multiple 6 professionals at those hearings:
7 8 PROFESSIONALS JUSTIFICATION FOR ATTENDANCE OF HEARING ATTENDING MORE THAN ONE PROFESSIONAL 9
February 7, 2002, M. Popofsky The defendants in PG&E's Filed Rate Case 10 hearing on motion (attorney) (the Commissioners of the California Public to dismiss (Matter M. Fiala (attorney) Utilities Commission ("CPUC")), as well as 11 No. 64) A.M. Cole (attorney) an applicant for intervention, The Utility R. Sheen (attorney) Reform Network ("TURN")), filed extensive 12 H. Ware (attorney) papers in support of motions to dismiss D. Luster (paralegal) PG&E's Filed Rate Case. A number of 13 M. Stone (paralegal) lawyers at Heller Ehrman worked on the briefing and analysis in response to those 14 motions, which involved a large number of complex issues. PG&E's lead trial counsel, 15 Ms. Fiala, argued for PG&E at the hearing.
Several (but not all) of the attorneys on the 16 Heller Ehrman team (two shareholders and two associates) joined Ms. Fiala at the 17 hearing. The attendance at the hearing of those Heller Ehrman lawyers who had 18 extensive responsibility for the motion to dismiss briefing was necessary to provide 19 support on particular factual or legal issues that might have arisen during the hearing.
20 Two paralegals also attended the hearing to transport a large number of documents for 21 potential use at the hearing as well as to transport and arrange the logistics of 22 demonstrative aids for use at the hearing.
23 March 7, 2002, M.L. Fiala attorney) This conference was specially set by the Case Management A.M. Cole (attorney) United States District Court to address an 24 Conference (Matter array of discovery and scheduling issues (in No. 64) both PG&E's Filed Rate Case (Matter No. 64) 25 and the appeal of this Court's ruling on PG&E's motion to stay enforcement of CPUC 26 Decision 01-03-082). Ms. Fiala is lead trial counsel in Matter No. 64 and Mr. Cole is 27 another shareholder working on the case with extensive familiarity with discovery issues.
Because discovery was a primary issue at the Heller 28 Ehrman White & CERTIFICATION OF ADAM M. COLE IIS/O McAuliffe LLP THIRD HELLER EHRMAN INTERIM FEE APPLICATION Case No. 01-30923 DM
1 PROFESSIONALS JUSTIFICATION FOR ATTENDANCE OF ATTENDING MORE THAN ONE PROFESSIONAL 2
conference, it was important for both PG&E's 3 lead trial counsel and the lawyer most familiar with discovery issues to be present.
4 February 21, 2002, S. Berman (attorney) This conference was an oral argument 5 prehearing H. Kim (attorney) concerning a motion to preserve conference at FERC approximately $150 million in refunds owed 6 (Matter No. 63) to PG&E, which had erroneously been excluded from calculations by the California 7 Power Exchange ("PX") in the FERC refund proceeding. Mr. Berman, the lead trial lawyer 8 for PG&E in the FERC proceeding, argued the motion. Because the judge had ordered 9 the opposing parties to present their argument orally, rather than in written rebuttal, 10 Ms. Kim attended the hearing to be able to provide prompt research responses to legal 11 and factual arguments advanced by opposing parties for the first time at the hearing.
12 March 4-6, 2002, S. Berman (attorney) These conferences addressed trial stipulations 13 stipulation J. Fagan (attorney) and scheduling issues concerning dozens of conference at FERC disputed issues and dozens of parties that 14 (Matter No. 63) were preparing for trial in the following week.
Numerous concurrent discussions were held.
15 In order to cover concurrent discussions, it was necessary that the conference be attended 16 by both PG&E's lead trial attorney Mr. Berman) and another attorney 17 Mr. Fagan).
18 March 7-8, 2002, S. Berman (attorney) The oral arguments held on these days prehearing J. Fagan (attorney) defined the issues and evidence for the refund 19 conference at FERC hearing held the following week. While (Matter No. 63) arguments were ongoing, with Mr. Berman 20 representing PG&E, concurrent breakout discussions were held with other attorneys for 21 the parties to resolve and address the rulings that were continually being made by the 22 judge. Mr. Fagan represented PG&E in those concurrent discussions.
23 March 11-15 and S. Berman (attorney) This was a trial concerning the price cap 24 19, 2002, hearing at J. Fagan (attorney) levels to be applied in establishing refunds for FERC (Matter J. Morgan (paralegal) PG&E for overcharges in California electric 25 No. 63) (March 15 only) markets. PG&E's potential refunds resulting from the trial are over $800 million. In order 26 to coordinate the representation of PG&E during the trial, including numerous exhibits, 27 frequent arguments concerning legal matters, and other trial issues, PG&E's lead trial Heller 28 lawyer (Mr. Berman) was assisted by another Ehrman White & CERTIFICATION OF ADAM M. COLE I/S/O McAuliffe LLP THIRD HELLER EHRMAN INTERIM FEE APPLICATION Case No. 01-30923 DM
1 PROFESSIONALS JUSTIFICATION FOR ATTENDANCE OF ATTENDING MORE THAN ONE PROFESSIONAL 2
attorney (Mr. Fagan) and at times by a 3 paralegal (Mr. Morgan).
4 March 22, 2002, S. Berman (attorney) In an effort to save money for PG&E, preheating J. Fagan (attorney) PG&E's lead trial attorney on FERC refund 5 conference at FERC matters, Mr. Berman, represented PG&E at (Matter No. 63) this conference telephonically. In order for 6 Heller Ehrman to participate in breakout sessions in hearing rooms adjacent to the 7 main hearing room to discuss scheduling issues, hearing tactics, and other matters with 8 parties aligned with PG&E, Mr. Fagan (who works in Heller Ehrman's D.C. office) 9 attended in person. Mr. Fagan also attended to assist at the main hearing in the event that 10 the telephonic connection failed.
11 12 15. Issues Relating to Expenses 13 a. Although Heller Ehrman customarily charges clients for meals and 14 transportation for attorneys, paralegals and support staff required to work late on the client's 15 matters - and, indeed, we have consistently charged PG&E for, and PG&E has paid, those 16 expenses - we have eliminated such charges from the Application.
17 b. As stated in the Application, computerized legal research is billed at the 18 standard rates charged by Westlaw and LEXIS, without markup or discount. Heller Ehrman 19 receives certain volume discounts from Westlaw and LEXIS which are not allocable to any 20 particular matter or client, and which Heller Ehrman does not attribute to any particular 21 client, including PG&E.
22 c. Pursuant to our longstanding practice and Master Fee Agreement with 23 PG&E, outgoing faxes have been charged at 75¢ per page.
24 d. On May 15, 2002, a copy of the Application was sent to PG&E's 25 Deputy General Counsel, Robert L. Bordon, who is Heller Ehrman's primary client contact 26 at PG&E, with the cover letter specified by Section I, ¶ 7 of the Guidelines.
27 Heller 28 Ehrman White & CERTIFICATION OF ADAM M. COLE IIS/O McAuliffe LLP THIRD HELLER EHRMAN INTERIM FEE APPLICATION Case No. 01-30923 DM
1 I declare under penalty of perjury that the foregoing is true and correct, and that this 2 Certification was executed on May 15, 2002, at San Francisco, California.
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