Free Joint Status Report - District Court of Federal Claims - federal

Case 1:02-cv-01894-EJD

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Filed 01/06/2006

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS CONSUMERS ENERGY COMPANY, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. ) ) ) ) ) ) ) ) ) ) )

COFC No. 02-1894-C (Chief Judge Damich)

JOINT STATUS REPORT PURSUANT TO ORDER DATED OCTOBER 25, 2005 Plaintiff Consumers Energy Company ("Plaintiff" or "Consumers Energy"), and Defendant United States of America ("Defendant" or the "government"), by and through their respective attorneys, submit this Joint Status Report in accordance with the Court's Order dated October 25, 2005, and state as follows: On October 25, 2005, this Court entered an Order staying the case at the request of the parties, and directing the parties to file a joint status report on or before January 6, 2006, addressing the status of settlement and/or the resumption of dispositive motions, discovery, and trial preparation. A. STATUS OF SETTLEMENT DISCUSSIONS On October 4, 2005, Consumers Energy submitted a Statement of Position Regarding Settlement letter to counsel for Defendant. Defendant reviewed and analyzed the Statement of Position letter, and on November 16, 2005, the parties participated in a telephone conference call through respective counsel to discuss the underlying economic assumptions and documentation. Defendant also discussed several technical concepts which, from Defendant's perspective, were

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Case 1:02-cv-01894-EJD

Document 92

Filed 01/06/2006

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required to be included in any formal settlement proposal. Some of the technical concepts required further analysis by Plaintiff's experts, which has only recently been completed. As a result, the parties respectfully request a continuation of the stay, and that further motions, discovery and trial preparation be suspended for another 60 days. The parties continue to believe that the settlement reached in another SNF case, Exelon v United States, may form the conceptual basis for settlement in this case. The format of the Exelon settlement was a compromise, and included lump sum and yearly reconciliation components. Consumers Energy's economic expert has produced a report strictly for purposes of settlement, which conforms as closely as possible to the format of the Exelon settlement, as a basis to begin discussions. Plaintiff has recently re-analyzed the report in response to issues raised during the parties' November 16, 2005 conference call. The parties request additional time to allow for the submission and subsequent review of a formal offer of settlement based on the previously submitted Statement of Position letter, and the comments made by Defendant to that letter. CONCLUSION AND RELIEF REQUESTED The parties respectfully request that further activity in this case be temporarily suspended for a period of 60 days while the parties engage in settlement discussions. The parties further request that they be allowed to file a Joint Status Report in 60 days reporting the status of settlement negotiations and/or the need for further action in the case.

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Case 1:02-cv-01894-EJD

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Respectfully submitted, Peter D. Keisler Assistant Attorney General David M. Cohen Director s/ Harold D. Lester, Jr. Harold D. Lester, Jr. Assistant Director Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, N.W. Tele: (202) 305-7562 Fax: (202) 307-2503 OF COUNSEL: Jane K. Taylor Office of General Counsel Department of Energy 1000 Independence Avenue, S.W. Washington, D.C. 20585 Attorneys for Defendant Dated: January 6, 2006 s/ Thomas O Mason Thomas O. Mason Williams, Mullen, Clark & Dobbins 8270 Greensboro Drive, Suite 700 McLean, VA 22102 (703) 760-5200 Harvey J. Messing (P23309) Jeffrey S. Theuer (P44161) LOOMIS, EWERT, PARSLEY, DAVIS & GOTTING, P.C. 232 S. Capitol Avenue, Suite 1000 Lansing, MI 48933 (517) 482-2400 Attorneys for Plaintiff OF COUNSEL: James E. Brunner (P28051) Arunas T. Udrys (P21660) Consumers Energy Company 212 West Michigan Avenue Jackson, MI 49201 (517) 788-2151 Attorneys for Plaintiff

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CERTIFICATE OF FILING I hereby certify that on this 6th day of January, 2006, a copy of the foregoing "JOINT STATUS REPORT PURSUANT TO ORDER DATED OCTOBER 25, 2005" was filed electronically. I understand that notice of this filing will be sent to all parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's system. s/ Francis E. Purcell, Jr.

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