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

Case 1:02-cv-01894-EJD

Document 91

Filed 10/25/2005

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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 SEPTEMBER 21, 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 September 21, 2005, and state as follows: On June 9, 2005, this Court entered an Order staying the case until further notice at the request of the parties, and directing the parties to file a joint status report on or before August 8, 2005, addressing the prospects of settlement and/or the resumption of dispositive motions, discovery, and trial preparation. On August 8, 2005, the parties submitted their Joint Status Report. On August 16, 2005, this Court entered a Status Report Order and Order Staying Case, continuing the stay through October 11, 2005, and requiring the parties to file a further Status Report on or before October 11, 2005 addressing the same issues. On September 21, 2005, this Court entered an Order extending the date for submission of the Joint Status Report through October 25, 2005.

Case 1:02-cv-01894-EJD

Document 91

Filed 10/25/2005

Page 2 of 4

A. STATUS OF SETTLEMENT DISCUSSIONS On October 4, 2005, Consumers Energy submitted a Statement of Position Regarding Settlement to counsel for Defendant. The parties anticipate that after the government has had an opportunity to review and analyze the Statement of Position, the parties will arrange a meeting to discuss the underlying economic assumptions and documentation. 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. The parties request additional time to allow the government to adequately analyze the Statement of Position and begin more formal settlement procedures if appropriate. 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

Document 91

Filed 10/25/2005

Page 3 of 4

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: October 25, 2005 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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Case 1:02-cv-01894-EJD

Document 91

Filed 10/25/2005

Page 4 of 4

CERTIFICATE OF FILING I hereby certify that on this 25th day of October, 2005, a copy of the foregoing "JOINT STATUS REPORT PURSUANT TO ORDER DATED SEPTEMBER 21, 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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