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Category:Legal-Correspondence
MONTHYEARML24141A1482024-05-17017 May 2024 05.17.24 Supplemental Excerpts of Record ML24088A0252024-03-27027 March 2024 03.27.24 Respondents Motion for Extension ML24067A0882024-03-0404 March 2024 Email Hearing Request from San Luis Obispo Mothers for Peace, Friends of the Earth, and Environmental Working Group ML23192A0252023-07-0303 July 2023 7-3-23 Petitioners Excerpts of Record Volume 3 (9th Cir.)(Case No. 23-852) ML23192A0212023-07-0303 July 2023 7-3-23 Petitioners Excerpts of Record Volume 1 (9th Cir.)(Case No. 23-852) ML23192A0192023-07-0303 July 2023 7-3-23 Petitioners Excerpts of Record Index (9th Cir.)(Case No. 23-852) ML23192A0232023-07-0303 July 2023 7-3-23 Petitioners Excerpts of Record Volume 2 (9th Cir.)(Case No. 23-852) ML23161A0012023-06-0606 June 2023 6-6-23 Respondents Motion to Extend the Time to File the Certified Index (9th Cir.)(Case No. 23-852) ML23144A2482023-05-17017 May 2023 5-17-23 Motion to Intervene Filed by Pge (9th Cir.)(No. 23-852) ML23136A0132023-05-10010 May 2023 5-10-23 Slompf Mediation Questionnaire (9th Cir.)(Case No. 23-852) ML21067A4142021-03-0808 March 2021 3-8-21 Mandate from 9th Circuit - Public Watchdogs V NRC 9th Cir 20-70899(Filed) ML18337A0642018-11-26026 November 2018 Court Mandate - 11-26-2018 - Foe V NRC - DC Cir 16-1004 ML16314B6872016-11-0909 November 2016 Intervenors' Request for Documents and Records from the Nuclear Relation to Geology and Seismicity ML16057A1982016-02-25025 February 2016 Federal Respondent'S Response to Opposition to Petitioner'S Motion to Hold the Case in Abeyance 2-25-16 ML16043A4972016-02-11011 February 2016 Petitioners Certificate Parties 2-11-16 ML15012A5462014-12-12012 December 2014 14-1213(D.C.Cir.) Certified Index of Record (Filed) ML15007A5122014-12-0101 December 2014 Petitioner'S Filing of the Underlying Decision from Which the Petition Arises ML12137A0242012-05-15015 May 2012 Diablo Canyon - May Hearing File Update ML1030200242010-10-28028 October 2010 San Luis Obispo Mothers for Peace V. USNRC; No. 08-75058 - Oral Argument Scheduled for November 4, 2010 Before Judges Reinhardt, Thomas & Chief Judge Restani of the International Court of Trade ML0717601352007-05-0303 May 2007 5/3/2007 - Petitioner'S Reply to Respondents' Opposition to Motion for Attorneys Fees and Costs Between San Luis Obispo Mother for Peace V. USNRC and Pacific Gas & Electric Co; No. 03-74628 ML0717601492007-02-14014 February 2007 2/14/2007 - Corrected Petitioners Motion for Attorney'S Fees and Costs, Errata Sheet and Additional Declarations; No. 03-74628 ML0703305102006-11-17017 November 2006 No. 06-466; Letter from the Honorable William K. Suter Granting the Extension of Time ML0703304402006-11-16016 November 2006 No. 06-466; Letter to the Honorable William K. Suter Petition for a Writ of Certiorari ML0703304422006-10-25025 October 2006 Corrected Letter from the Honorable William K. Suter for the Extension of Time No. 06-466 ML0703304442006-10-23023 October 2006 Letter from William K. Suter, Clerk Response to the Petition for a Writ of Certiorari Granting Extension of Time ML0703305212006-10-20020 October 2006 Letter to the Honorable William K. Suter, Regarding Pacific Gas & Electric Company V. San Luis Obispo Mother for Peace, Et At. S. Ct No. 06-466 ML0703305182006-10-20020 October 2006 Letter to U.S. Supreme Court Docket No. 06-466 Requesting a 29-Day Extension of Time for Filing an Opposition to the Petition for Certiorari ML0622301182006-07-0606 July 2006 Reply to Petitioners' Response to Government'S Motion for Extension of Time within Which to File a Petition for Rehearing or Rehearing En Banc, Dated 07/06/2006 ML0622301172006-07-0505 July 2006 Petitioners' Response to Us Nrc'S Motion for Extension of Time to File Petition for Rehearing, Dated 07/05/2006 ML0622301232006-06-29029 June 2006 Federal Respondents' Motion for Extension of Time in Which to File a Petition for Rehearing En Banc, Dated 06/29/2006 ML0622301222006-06-0202 June 2006 Petition for Review of an Order of the Nuclear Regulatory Commission, Filed 06/02/2006 ML0533202202005-11-17017 November 2005 Federal Respondents' Fifth Filing Under Frap 28J, Dated 11/17/05 ML0531801412005-11-0909 November 2005 Federal Respondents' Fourth Filing Under Frap 28J, Dated 11/9/05 ML0533202592005-10-11011 October 2005 Federal Respondents' Second Filing Under Frap 28J, Dated 10/11/05 ML0503101152005-01-12012 January 2005 Original Mandate Transmitted to NRC, Dated 01/12/05 ML0436502262004-11-24024 November 2004 Letter to Court Clerk from G. Kim Clarification of a Post-Oral Argument Letter, Dated 11/24/04 ML0436502302004-11-19019 November 2004 Letter to Court Clerk from R. Mcdiarmid Information of e-mail Messages, Dated 11/19/04 ML0436502382004-11-15015 November 2004 Facsimile Message to Courtroom Deputy Clerk from G. Kim Oral Argument Schedules 11/19/04 ML0436502342004-11-15015 November 2004 Letter to Court Clerk from R. Mcdiarmid Oral Argument for 11/19/04, Dated 11/15/04 ML0421802322004-07-30030 July 2004 Errata Re Eighth and Final Fee Application for Allowance and Payment of Interim Compensation and Reimbursement of Expenses for Winston & Strawn ML0421702892004-07-26026 July 2004 Final Application of Pricewaterhousecoopers Llp for Allowance and Payment of Compensation and Reimbursement of Expenses (September 1, 2002 Through February 28, 2003) ML0421004272004-07-21021 July 2004 Notice of Motion and the California Power Exchange Corporation Motion for Authority to Amend Prepetition Claim, Memorandum of Points and Authorities, Declaration of Marc S. Cohen in Support Thereof ML0421004302004-07-20020 July 2004 Notice of Application & California Power Exchange Corporation'S Application for Payment of Professional Compensation & Reimbursement of Expenses Under 11 U.S.C. 503(b)(3) & (4); Memorandum of Points and Authorities; Declarations of Cohen, R ML0420302692004-07-12012 July 2004 Ninth Interim and Final Application of FTI Consulting Inc. for Allowance and Payment of Compensation and Reimbursement of Expenses (April 11, 2001 Through April 12, 2004); Declaration of Thomas E. Lumsden in Support Thereof ML0420202962004-07-12012 July 2004 Eighth and Final Application for Allowance of Fees and Expenses of Winston & Strawn Llp (August 16, 2001 Through April 12, 2004) ML0420203032004-07-12012 July 2004 Exhibits in Support of Motion of the City of Palo Alto for Order Directing Payment of Reasonable Attorneys' Fees and Costs Pursuant to Section 503(b)(3)(D), 503(b)(3)(F) and 503(b)(4) ML0421004192004-07-0404 July 2004 Appendix of Exhibits in Support of the California Power Exchange Corporation'S Application for Payment of Professional Compensation and Reimbursement of Expenses Under 11 U.S.C. 503(b)(3) and (4) ML0416706302004-06-0707 June 2004 Modesto Irrigation District'S Response to Debtor'S Objection to Claim ML0416005722004-05-28028 May 2004 Rothschild Inc'S Cover Sheet Application for Allowance and Payment of Interim Compensation and Reimbursement of Expenses for the Period April 1, 2004 - April 12, 2004 ML0416005602004-05-28028 May 2004 Deloitte & Touche Llp'S Cover Sheet Application for Allowance and Payment of Interim Compensation and Reimbursement of Expenses (March 1, 2004 to April 12, 2004) 2024-05-17
[Table view] Category:Legal-Correspondence/Maintenance
MONTHYEARML0533202202005-11-17017 November 2005 Federal Respondents' Fifth Filing Under Frap 28J, Dated 11/17/05 ML0531801412005-11-0909 November 2005 Federal Respondents' Fourth Filing Under Frap 28J, Dated 11/9/05 ML0533202592005-10-11011 October 2005 Federal Respondents' Second Filing Under Frap 28J, Dated 10/11/05 ML0503101152005-01-12012 January 2005 Original Mandate Transmitted to NRC, Dated 01/12/05 ML0436502262004-11-24024 November 2004 Letter to Court Clerk from G. Kim Clarification of a Post-Oral Argument Letter, Dated 11/24/04 ML0436502302004-11-19019 November 2004 Letter to Court Clerk from R. Mcdiarmid Information of e-mail Messages, Dated 11/19/04 ML0436502382004-11-15015 November 2004 Facsimile Message to Courtroom Deputy Clerk from G. Kim Oral Argument Schedules 11/19/04 ML0436502342004-11-15015 November 2004 Letter to Court Clerk from R. Mcdiarmid Oral Argument for 11/19/04, Dated 11/15/04 ML0421802322004-07-30030 July 2004 Errata Re Eighth and Final Fee Application for Allowance and Payment of Interim Compensation and Reimbursement of Expenses for Winston & Strawn ML0421702892004-07-26026 July 2004 Final Application of Pricewaterhousecoopers Llp for Allowance and Payment of Compensation and Reimbursement of Expenses (September 1, 2002 Through February 28, 2003) ML0421004272004-07-21021 July 2004 Notice of Motion and the California Power Exchange Corporation Motion for Authority to Amend Prepetition Claim, Memorandum of Points and Authorities, Declaration of Marc S. Cohen in Support Thereof ML0421004302004-07-20020 July 2004 Notice of Application & California Power Exchange Corporation'S Application for Payment of Professional Compensation & Reimbursement of Expenses Under 11 U.S.C. 503(b)(3) & (4); Memorandum of Points and Authorities; Declarations of Cohen, R ML0420302692004-07-12012 July 2004 Ninth Interim and Final Application of FTI Consulting Inc. for Allowance and Payment of Compensation and Reimbursement of Expenses (April 11, 2001 Through April 12, 2004); Declaration of Thomas E. Lumsden in Support Thereof ML0420203032004-07-12012 July 2004 Exhibits in Support of Motion of the City of Palo Alto for Order Directing Payment of Reasonable Attorneys' Fees and Costs Pursuant to Section 503(b)(3)(D), 503(b)(3)(F) and 503(b)(4) ML0420202962004-07-12012 July 2004 Eighth and Final Application for Allowance of Fees and Expenses of Winston & Strawn Llp (August 16, 2001 Through April 12, 2004) ML0421004192004-07-0404 July 2004 Appendix of Exhibits in Support of the California Power Exchange Corporation'S Application for Payment of Professional Compensation and Reimbursement of Expenses Under 11 U.S.C. 503(b)(3) and (4) ML0416706302004-06-0707 June 2004 Modesto Irrigation District'S Response to Debtor'S Objection to Claim ML0416001862004-05-28028 May 2004 Cooley Godward Llp'S Thirty-Fifth Cover Sheet Application for Allowance and Payment of Interim Compensation and Reimbursement of Expenses for the Period April 1, 2004 - April 12, 2004 ML0416005722004-05-28028 May 2004 Rothschild Inc'S Cover Sheet Application for Allowance and Payment of Interim Compensation and Reimbursement of Expenses for the Period April 1, 2004 - April 12, 2004 ML0416005602004-05-28028 May 2004 Deloitte & Touche Llp'S Cover Sheet Application for Allowance and Payment of Interim Compensation and Reimbursement of Expenses (March 1, 2004 to April 12, 2004) ML0415902522004-05-28028 May 2004 Saybrook Capital, LLC Cover Sheet Application for Allowance and Payment of Interim Compensation and Reimbursement of Expenses for April 1 Through April 12, 2004 ML0415603342004-05-27027 May 2004 Howard, Rice, Nemerovski, Canady, Falk & Rabkin Cover Sheet Application for Allowance and Payment of Interim Compensation and Reimbursement of Expenses for April 1, 2004 Through April 12, 2004 ML0415603072004-05-26026 May 2004 FTI Consulting Inc. Cover Sheet Application for Allowance and Payment of Interim Compensation and Reimbursement of Expenses for April 1, 2004 to April 12, 2004 ML0415508302004-05-26026 May 2004 Steefel, Levitt & Weiss'S Cover Sheet Application for Allowance and Payment of Interim Compensation and Reimbursement of Expenses for the Period April 1-12 2004 ML0415603352004-05-25025 May 2004 Innisfree M&A Incorporated'S Fourth Interim Cover Sheet Application for Allowance and Payment of Compensation and Reimbursement of Expenses for the Period January 1, 2004 - April 12, 2004 ML0415902482004-05-25025 May 2004 Milbank, Tweed, Hadley & Mccloy Llp'S Cover Sheet Application for Allowance and Payment of Interim Compensation and Reimbursement of Expenses for April 1, 2004 Through April 12, 2004 ML0415404112004-05-24024 May 2004 Winston & Strawn Llp'S Cover Sheet Application for Allowance and Payment of Interim Compensation and Reimbursement of Expenses for the Period April 1.2004 Through April 12 2004 ML0414900892004-05-21021 May 2004 Heller Ehrman White & Mcauliffe Llp'S Cover Sheet Application for Allowance and Payment of Interim Compensation and Reimbursement of Expenses for the Period April 1, 2004, Through April 12, 2004 ML0415903242004-05-21021 May 2004 Public Policy Advocates Llc'S Cover Sheet Application for Allowance and Payment of Interim Compensation and Reimbursement of Expenses for April 1, 2004 Through April 12, 2004 ML0414701812004-05-20020 May 2004 Legc, LLC Cover Sheet Application for Allowance and Payment of Interim Compensation and Reimbursement of Expenses for the Period April 1. 2004 to April 12 200 ML0413203762004-04-30030 April 2004 Saybrook Capital, LLC Cover Sheet Application for Allowance and Payment of Interim Compensation and Reimbursement of Expenses for March 1 Through March 31, 2004 ML0412705072004-04-30030 April 2004 Steefel, Levitt & Weiss'S Cover Sheet Application for Allowance and Payment of Interim Compensation and Reimbursement of Expenses for the Period March 1-31, 2004 ML0413303832004-04-30030 April 2004 Rothschild Inc'S Cover Sheet Application for Allowance and Payment of Interim Compensation and Reimbursement of Expenses for the Period March 1, 2004 - March 31, 2004 ML0413303802004-04-30030 April 2004 Howard, Rice, Nemerovski, Canady, Falk & Rabkin Cover Sheet Application for Allowance and Payment of Interim Compensation and Reimbursement of Expenses for March. 2004 ML0413203702004-04-30030 April 2004 FTI Consulting Inc. Cover Sheet Application for Allowance and Payment of Interim Compensation and Reimbursement of Expenses for March 1, 2004 to March 31, 2004 ML0413202012004-04-30030 April 2004 Cooley Godward Llp'S Thirty-Fourth Cover Sheet Application for Allowance and Payment of Interim Compensation and Reimbursement of Expenses for the Period March 1, 2004 - March 31, 2004 ML0413203752004-04-30030 April 2004 Heller Ehrman White & Mcauliffe Llp'S Cover Sheet Application for Allowance and Payment of Interim Compensation and Reimbursement of Expenses for the Period March 1, 2004, Through March 31, 2004 ML0412700262004-04-29029 April 2004 Winston & Strawn Llp'S Cover Sheet Application for Allowance and Payment of Interim Compensation and Reimbursement of Expenses for the Period, March 1. 2004 Through March 31. 2004 ML0412700412004-04-27027 April 2004 Keker & Van Nest'S Cover Sheet Application for Allowance and Payment of Interim Compensation and Reimbursement of Expenses for the Period March 1, 2004 to March 31, 2004 ML0414701802004-04-23023 April 2004 Milbank, Tweed, Hadley & Mccloy Llp'S Cover Sheet - Application for Allowance and Payment of Interim Compensation and Reimbursement of Expenses for March 2004 ML0412102292004-04-22022 April 2004 Lecg, LLC Cover Sheet Application for Allowance and Payment of Interim Compensation and Reimbursement of Expenses for the Period 03/01-31/2004 ML0414701852004-04-15015 April 2004 Public Policy Advocates Llc'S Cover Sheet Application for Allowance and Payment of Interim Compensation and Reimbursement of Expenses for March 1, 2004 Through March 31, 2004 ML0414102072004-04-12012 April 2004 Keker & Van Nest'S Cover Sheet Application for Allowance and Payment of Interim Compensation and Reimbursement of Expenses for the Period April 1, 2004 to April 12, 2004 ML0410703992004-03-31031 March 2004 FTI Consulting Inc. Cover Sheet Applications for Allowance and Payment of Interim Compensation and Reimbursement of Expenses for February 1, 2004 to February 29, 2004 ML0409804962004-03-31031 March 2004 Cooley Godward Llp'S Thirty-Third Cover Sheet Application for Allowance and Payment of Interim Compensation and Reimbursement of Expenses for the Period February 1, 2004 - February 29, 2004 ML0409704632004-03-30030 March 2004 Howard, Rice, Nemerovski, Canady, Falk & Rabkin Cover Sheet Application for Allowance and Payment of Interim Compensation and Reimbursement of Expenses for February, 2004 ML0409704442004-03-30030 March 2004 Deloitte & Touche Llp'S Cover Sheet Application for Allowance and Payment of Interim Compensation and Reimbursement of Expenses (February 1, 2004, to February 29, 2004) ML0409704382004-03-29029 March 2004 Lecg, LLC Cover Sheet Application for Allowance and Payment of Interim Compensation and Reimbursement of Expenses for the Period February 1, 2004 to February 29, 2004 ML0409703622004-03-29029 March 2004 Skadden, Arps, Slate, Meagher & Flom Llp'S Cover Sheet Application for Allowance and Payment of Interim Compensation and Reimbursement of Expenses for the Period February 1, 2004 Through February 29, 2004 ML0409805892004-03-26026 March 2004 Milbank, Tweed, Hadley & Mccloy Llp'S Cover Sheet Application for Allowance and Payment of Interim Compensation and Reimbursement of Expenses for February 2004 2005-11-09
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Text
1 JAMES L. LOPES (No. 63678)
WILLIAM J. LAFFERTY (No. 120814) 2 CEIDE ZAPPARONI (No. 200708)
HOWARD, RICE, NEMEROVSKI, CANADY, &' "
3 FALK & RABKIN A Professional Corporation 4 Three Embarcadero Center, 7th Floor San Francisco, California 94111-4065 5 Telephone: 415/434-1600 Facsimile: 415/217-5910 6
Attorneys for Debtor and Debtor in Possession 7 PACIFIC GAS AND ELECTRIC COMPANY 8
UNITED STATES BANKRUPTCY COURT 9
NORTHERN DISTRICT OF CALIFORNIA 10 SAN FRANCISCO DIVISION 11 In re Case No. 01 30923 DM 12 PACIFIC GAS AND ELECTRIC Chapter 11 Case 13 COMPANY, a California corporation, HCNRD RuE Date: November 5, 2002 E 14 Debtor. Time: 9:30 a.m.
eRA4(IN Place: 235 Pine Street, 22nd Floor AP_.1*. 15 Federal I.D. No. 94-0742640 San Francisco, California 16 17 18 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEBTOR'S MOTION FOR ORDER APPROVING ENTRY INTO RESCISSION AGREEMENT AND 19 MUTUAL RELEASE BETWEEN DEBTOR AND RCN TELECOM SERVICES 20 [Notice of Motion and Declaration of Lori I. Austin in Support Filed Concurrently Herewith]
21 22 23 24 25 26 27 V4&'! (0e 28 0o00 MPA ISO MOT FOR ORDER APPROVING RESCISSION AGREEMENT
1 1.
2 INTRODUCTION 3 Pacific Gas and Electric Company ("PG&E" or "Debtor"), the debtor and debtor in 4 possession in the above-captioned Chapter 11 case, seeks the Court's approval of the 5 Debtor's entry into an agreement with telecommunications company RCN Telecom Services 6 ("RCN"), which rescinds a lease agreement with RCN and resolves potential disputes 7 between the parties. On November 20, 2000, PG&E and RCN entered into a "Master 8 Conduit and Facilities License and Lease Agreement" ( "Master Agreement"). Under the 9 Master Agreement, PG&E agreed to lease certain deactivated PG&E gas pipelines in San 10 Francisco to RCN to run fiber optic and coaxial cables and associated equipment. The 11 Master Agreement required RCN to make a series of graduated payments reflecting the 12 number of miles of gas pipeline utilized by RCN up to a total of 100 miles over the life of 30 miles of gas pipeline and 13 the 99-year lease. Under the Master Agreement, RCN reserved
, 14 paid PG&E $876,170.72 in January 2001. RCN did not install any telecommunications
&PAWl Z-.a.mz 15 equipment in the reserved lines. Subsequently, RCN told PG&E that its financial condition 16 was such that it was unable to pay the next installment of $248,384.50 due on January 1, 17 2002 or make any payments thereafter. RCN failed to make the January payment. On 18 March 21, 2002, PG&E notified RCN that it was in default under the Master Agreement and 19 gave notice of termination. Under the Master Agreement, upon termination PG&E would be 20 required to refund approximately $832,000 of the $876,170.72 (19/20 or 95%) RCN had 21 paid PG&E.
22 PG&E's underground gas pipelines are in San Francisco streets pursuant, in part, 23 to a gas franchise agreement with the City and County of San Francisco ("CCSF"). CCSF 24 has challenged PG&E's rights to lease its former gas pipelines to RCN, alleging that the 25 Master Agreement breached the franchise agreement and violated the local ordinance 26 incorporating the franchise agreement into CCSF's municipal code.
27 28 MPA ISO MOT FOR ORDER APPROVING RESCISSION AGREEMENT 1 In view of RCN's default and CCSF's claims, PG&E seeks the Court's 2 authorization to compromise the dispute with RCN by rescinding the Master Agreement on 3 terms beneficial to both parties on the basis that such a result would best promote the 4 business interests of PG&E's estate.
5 6 II.
7 FACTS AND PROCEDURAL HISTORY1 8 PG&E has the right to run underground gas pipelines in San Francisco pursuant, 9 in part, to a franchise agreement with the City and County of San Francisco ("CCSF"),
10 which is codified in CCSF Municipal Code (the "CCSF Gas Franchise"). On November 20, 11 2000, PG&E entered into the Master Agreement with RCN. The Master Agreement was 12 designed to provide RCN with the right to install and maintain telecommunications cables HiCAA 13 such as fiber optic cable and associated equipment in certain deactivated PG&E gas RKI D 14 pipelines in San Francisco for a period of up to 99 years. Id.. at ¶ 1.1.
EtRtIflC
.4,,*,b 15 Under the Master Agreement, RCN was to reserve a minimum amount of gas line 16 each year and make an up-front payment for each section of gas line reserved. In addition, 17 RCN was required to make annual payments for each section of deactivated gas line 18 reserved. The amounts payable by RCN were calculated using a formula set forth in the 19 Master Agreement, which was based (in part) on how much of pipeline RCN reserved.
20 Master Agreement ¶8.1. The first amount due under the Master Agreement represented a 21 20-year payment for 30 miles of pipeline. For each of the next 9 years of the Master 22 Agreement, RCN would pay an amount representing a 20-year payment for 8 miles of 23 pipeline, until RCN reached the maximum of 100 miles of pipeline for which RCN had 24 contracted. After the first 20 years of the Master Agreement had elapsed, RCN was required 25 to pay an amount every 10 years representing 10 years of use of 100 miles of pipeline. Thus, 26
'The evidentiary basis and support for the facts set forth herein are contained in the 27 Declaration of Lori I. Austin In Support of Debtor's Motion For Order Approving Rescission Agreement And Muualelease Beteen Debtor And RCN Telecom Services 28 filed concurrently herewith.
MPA ISO MOT FOR ORDER APPROVING RESCISSION AGREEMENT 1 it was anticipated that RCN's use of pipeline would increase over the term of the Master 2 Agreement. If the Master Agreement were terminated by either party before the end of the 3 term, the parties agreed that PG&E would refund RCN the prorata portion of the payments 4 received that were allocable to future use. Master Agreement ¶ 8.1 (d).
5 On January 1, 2001, RCN made its first payment of $876,553.92 under the 6 Master Agreement. A further $248,384.50 was due under the Master Agreement on 7 January 1, 2002. In November 2001, RCN told PG&E that its financial situation had 8 deteriorated, and it would not be making the January 2002 payment or any other payments.
9 Moreover, RCN told PG&E that its pipeline capacity needs had decreased substantially, and 10 the Master Agreement provided for pipeline capacity far in excess of RCN's anticipated 11 needs. RCN did not make the January payment and has made no subsequent payments. In 12 March 2002, PG&E notified RCN that it proposed to terminate the Master Agreement due to HOWAD RhC 13 RCN's default.
O 14 After the Master Agreement was executed, CCSF claimed that the Master
- PABKWN 15 Agreement was in violation of the CCSF Gas Franchise.2 PG&E's San Francisco pipeline 16 use was limited, CCSF claimed, to gas-related uses, not telecom-related uses.
17 In view of RCN's failure to make the January payment, statements regarding its 18 financial position and lack of need for the pipeline capacity for which it had contracted, the 19 Master Agreement provision requiring PG&E to return to RCN on termination 20 approximately 19/20 (or 95%) of the $876,533.92, and CCSF's allegations that PG&E was 21 not authorized to enter into the Master Agreement, PG&E concluded that maintaining the 22 Master Agreement was not in PG&E's business interests. Accordingly, PG&E negotiated an 23 agreement with RCN to rescind the Master Agreement to resolve any dispute with RCN and 24 also avoid any potential dispute with CCSF (the "Rescission Agreement"). The Rescission 25 Agreement provides for PG&E to refund $873,170.72 (the amount RCN paid PG&E 26 27 2CCSF has filed a claim in PG&E's bankruptcy action (Claim No. 12640), which included a claim for an "unknown" amount relating to PG&E's proposed lease of its 28 abandoned gas lines to RCN.
MPA ISO MOT FOR ORDER APPROVING RESCISSION AGREEMENT 1 pursuant to 18.1 of the Master Agreement, less certain costs iricurred by PG&E under the 2 Master Agreement), without any requirement that PG&E pay interest to RCN. Furthermore, 3 the Rescission Agreement provides for mutual releases of liability and makes explicit that 4 the entry into the Rescission Agreement is not a rejection of the Master Agreement for 5 Bankruptcy purposes; and, therefore, PG&E is not liable to pay rejection damages.
6 Rescission Agreement ¶¶4-5. The Rescission Agreement provides a reasonable resolution of 7 the issues and potential disputes that arose out of the Master Agreement in a manner that is 8 beneficial to PG&E and fair to RCN.
9 10 I.
11 ARGUMENT 12 A. The Rescission Agreement Compromises The Potential Dispute With RCN Under Terms Fair To Both Parties Without The Expense And Diversion Of 13 Resources Involved In Litigation And Should Be Authorized Pursuant To RKE Bankruptcy Rule 9019.
"CV" 14 EUK 15 Bankruptcy law favors compromises, which are considered "a normal part of the 16 process of reorganization." Protective Comm. for Indep. Stockholders of TMT Trailer Ferry 17 Inc. v. Anderson, 390 U.S. 414, 424 (1968). Accordingly, the Bankruptcy Court has great 18 latitude in approving compromise agreements. See Martin v. Kane (In re A & C Props.),
19 784 F.2d 1377, 1380-81 (9th Cir. 1986). The Court's discretion is not, however, unlimited.
20 See Arden v. Motel Partners (In re Arden), 176 F.3d 1226, 1228 (9th Cir. 1999). The Court 21 may approve a compromise only if it is "fair and equitable." Protective Comm. for Indep.
22 Stockholders of TMT Trailer Ferry Inc., 390 U.S. at 424. In evaluating any proposed 23 compromise, the Court must consider the following factors:
24 25 26 27 28 MPA ISO MOT FOR ORDER APPROVING RESCISSION AGREEMENT 1 (a) The probability of success in the litigation; (b) the difficulties, if any, to be encountered in the matter of collection; (c) the complexity 2 of the litigation involved, and the expense, inconvenience and delay necessarily attending it; (d) the paramount interest of the creditors and 3 a proper deference to their reasonable views in the premises.
(Woodson v. Fireman's Fund Ins. Co. (In re Woodson), 839 F.2d 610, 4 620 (9th Cir. 1988) (quoting In re A & C Props., 784 F.2d at 1381).
5 Courts weigh these factors to determine whether the compromise is in the best interests of 6
the estate. See A & C Props., 784 F.2d at 1382 (court must "weigh certain factors to determine whether the compromise is in the best interest of the bankrupt estate").
8 Bearing these points in mind, each of the A & C Properties factors weighs in 9 favor of authorizating of PG&E's entry into the Agreement and Release. RCN's 10 unequivocal inability and/or unwillingness to fulfill its obligations under the Master 11 Agreement coupled with CCSF's allegations that PG&E was not empowered to lease its gas 12 pipelines for telecom purposes would raise a number of potentially difficult disputed issues V 13 if PG&E were to seek to enforce the Master Agreement against RCN. Litigating such issues t NU CA "14 EqK against RCN (and, potentially, CCSF) would undoubtedly prove time-consuming and costly, AOd,4* 15 and a successful legal outcome is by no means assured. Moreover, since RCN has 16 unequivocally defaulted on its payment obligations due to financial constraints, there is 17 significant doubt that pursuing litigation against RCN would result in any recovery.
18 Additionally, if PG&E had proceeded to terminate the Master Agreement, it 19 would have been required to refund 95% of the money RCN had paid to date anyway. For 20 only a small amount more than the amount it would have to pay upon termination, PG&E 21 obtains the benefit of mutual liability releases and a limitation on payment of any rejection 22 damages or interest. Therefore, rescinding the Master Agreement is a fair and equitable 23 resolution of potential disputes and in the best interests of PG&E's estate.
24 25 26 27 28 MPA ISO MOT FOR ORDER APPROVING RESCISSION AGREEMENT I B. The Court Should Approve The Payment To RCN Under The Rescission Agreement Pursuant To Section 363 Of The Bankruptcy Code Because 2 Sound Business Justifications Exist For The Refund.
3 Moreover, the Court should approve the refund of $873,170.72 to RCN pursuant 4 to its powers under Section 363(b)(1) of the Bankruptcy Code to authorize the use of estate 3
5 property.
6 Pursuant to Section 363(b)(1), the court may authorize the debtor in possession to 7 use property of the estate "other than in the ordinary course of business." In determining 8 whether to authorize a transaction under Section 363(b)(1), courts require a debtor to show 9 that a sound business purpose justifies such actions, applying the "business judgment" test.
10 See, L._., Stephens Indus., Inc. v. McClung, 789 F.2d 386, 389-90 (6th Cir. 1986);
11 Committee of Equity Sec. Holders v. Lionel Corp. (In re Lionel Corp.), 722 F.2d 1063, 12 1063-64 (2d Cir. 1983); 3 Lawrence P. King, Collier on Bankruptcy §363.02[1][g] (15th ed.
HOIMD 13 rev. 1998).
RC14 The burden of establishing a valid business purpose for a transaction outside the ordinary course of business falls upon the debtor. See In re Lionel Corp., 722 F.2d at 1070
&IRAW~N 15 16 71. Once the debtor has articulated a rational business justification, however, a presumption 17 attaches that the decision was made on an informed basis, in good faith and in the honest of 18 belief that the action was in the best interest of the debtor. See, e.g*, Official Comm.
19 Subordinated Bondholders v. Integrated Res., Inc. (In re Integrated Res., Inc.), 147 B.R. 650, 20 656 (S.D.N.Y. 1992) (citing Smith v. Van Gorkom, 488 A.2d 858, 872 (Del. 1985)).
21 As discussed in detail above, sound business justifications exist for PG&E to 22 rescind the agreement with RCN. Enforcing the Master Agreement is fraught with difficulty 23 and unlikely to result in a profitable outcome for PG&E. Moreover, the Rescission 24 Agreement allows PG&E to resolve or avoid disputes under the Master Agreement and 25 3Arguably, PG&E's decision to refund the money RCN has paid under the Master 26' Agreement to rescind a contract which has proved unlikely to benefit the company is within the ordinary course of business for any enterprise. Thus, the payment may be made without 27 resort to the Court pursuant to Section 363(c)(1) of the Bankruptcy Code. However, to eliminate any uncertainty, and to fulfill the terms of the Rescission Agreement, PG&E seeks 28 an Order of this Court pursuant to Section 363(b).
MPA ISO MOT FOR ORDER APPROVING RESCISSION AGREEMENT 1 obtain a release of liability without the payment of interest or rejection damages for the 2 payment of a sum only slightly higher than PG&E was obliged to pay upon termination 3 based on RCN's default in any event. See Rescission Agreement, ¶¶ 4-5.
4 Accordingly, pursuant to its authority under Section 363(b)(1), the Court should 5 authorize PG&E to enter into the Rescission Agreement.
6 IV.
7 CONCLUSION 8 For all of the foregoing reasons, PG&E respectfully requests that this Court grant 9 the Motion and enter its Order approving the said Rescission Agreement and Mutual Release 10 as an appropriate compromise in the interests of the estate pursuant to Bankruptcy Rule 9019 11 and authorize the payment of $873,170.72 pursuant to Section 363(b)(1) of the Bankruptcy 12 Code.
HOVARD 13 DATED: October r, 2002.
RICE Respectfully, EamI Nivuom' 14 HOWARD, RICE, NEMEROVSKI, CANADY, 15 FALK & RABKIN A Professional Corpor 16 By: _11--2 "
BCEIDE ZAPPARONI 17 18 Attorneys for Debtor and Debtor in Possession PACIFIC GAS AND ELECTRIC COMPANY 19 20 WD 100702V1-1419909/cec/l0275131vl 21 22 23 24 25 26 27 28 MPA ISO MOT FOR ORDER APPROVING RESCISSION AGREEMENT