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PULP Seeks Sanctions Against Two New York ESCOs

August 25, 2017

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Copyright 2010-17
Reporting by Paul Ring •

The Public Utility Law Project of NY filed a motion requesting that the New York PSC impose sanctions against two energy service company (ESCO) parties, specifically, as described by PULP, "Robinson [sic] Energy LLC," and Agway Energy Services LLC, as PULP alleged that both parties failed to comply with the New York State Public Service Commission’s August 3, 2017 Order compelling ESCO parties to respond to certain PULP discovery requests issued in the PSC's evidentiary review of the retail mass market.

PULP said that by the terms of the Commission’s Order, the ESCO parties were directed to provide these nineteen discovery requests by Friday, August 18th.

PULP alleged, "On Monday, August 19th, PULP sent e-mails to the individual representatives of both parties requesting a status update for the outstanding and overdue discovery responses. Agway has not replied to our e-mail as of the filing of this [August 24th] motion. The attorney representative for Robinson [sic] Energy replied by e-mail the morning of August 23, 2017 apologizing for the delay, explaining that her client was on vacation, and stating that given that their initial response was likely more thorough than other ESCO parties, they would review whatever might be outstanding and get back to PULP by Friday, August 25th. PULP replied that all requests for extension should be directed to Your Honors’ attention, and did not otherwise address Robinson’s [sic] statement concerning responsiveness of discovery to date. As of the filing of this motion, Robinson [sic] has not requested an extension from Your Honors, or if it did, it has not copied all the parties as is required procedure."

Note: throughout PULP's comments, PULP identifies the ESCO as "Robinson [sic] Energy," but it is understood that PULP is intending to cite Robison Energy.

Dan Singer, Co-President of Robison Energy, provided the following statement to ECM: "Robison is small family owned business. I just returned home late last night after being out all week dropping my 18 year old son off at college. Our CFO has been out tending to his ill mother. Our retail ESCO is relatively small and a minor part of our overall operations. Since the beginning of these proceedings, Robison has been acting in good faith, and we made PULP aware of some recent personnel constraints and our intention to comply. We felt that after doing so, it was unwarranted for PULP to submit a motion seeking sanctions. We have been disappointed throughout in the way that PULP has been non-responsive to our efforts to communicate and collaborate on solutions."

PULP noted that under applicable regulations, possible sanctions include allowing specified facts related to the matter at hand to be taken as established, and to the disadvantage of the recalcitrant party; to prohibit the recalcitrant party from introducing the evidence concerning which the discovery request was made; or other action as may be proper in the circumstances

PULP suggested, at the very least, the following sanctions:

(1) PULP should be allowed to take specified facts related to the matter contained in the unproduced discovery requests as established, and Robinson and Agway should be prohibited from introducing evidence concerning the discovery request after the fact.

(2) If the ALJs are willing to give the ESCOs one more chance, any response permitted by Robinson and Agway, or other parties, to this motion should be shortened to a deadline of 24 hours from the filing of this motion.

(3) Agway and Robinson should not be permitted any individual discovery extension, if the remedy sought for in bullet point number 1 above is not awarded. Each party should be required to provide full and comprehensive responses to PULP-ESCO 1-19 without delay, and no later than Monday, August 28, 2017.

(4) Additionally, Agway and Robinson should be required to provide responses as they become available between now and Monday, August 28, 2017, and should not be permitted to wait until all its responses are compiled to provide its responses to PULP, and the other parties.

(5) To the extent that there are further delays of discovery, or answers are provided after Monday, August 28, 2017, PULP should be automatically granted the ability to file supplemental testimony to update its expert witness's initial testimony after deadline, to the extent that the information provided by Agway and Robinson after this date in any way alters, expands, or modifies her previously provided testimony.

PULP alleged that to the extent ESCOs may claim that prior responses complied with the discovery requests, such submissions were inadequate and not fully responsive.

For example, PULP alleged, "Agway may attempt to assert that their initial answers provided to PULP are fully responsive in content and scope to PULP-ESCO 1-19. But this catch-all assertion would be overly convenient, inaccurate, and misleading. Consider for example, PULP-ESCO 1 where we ask the ESCO party to identify all means by which the ESCO’s products were sold in New York starting in January 1, 2011, and extending to the present. Subsequent to our request, your Honors modified the scope of permissible historical range of discovery from 2012 through 2016; nevertheless, Agway’s response, without waiving its foregoing objections, only stated that 'it currently conducts sales through telemarketing, direct mail and internet sales' and did not acknowledge or identify whether it sold its products since 2012."

PULP also alleged with regard to Robinson, ""In response to PULP-ESCO 5 requesting the ESCO’s internal compliance program, policy, and corporate structure, and to PULP-ESCO 15 requesting a copy of terms and conditions and relevant disclosure documents used by the ESCO, and to PULP-ESCO 16 requesting the methodology used to calculate the residential customer’s monthly bill for each type of variable rate contract, Robinson simply directed PULP to its Triennial filing on the Commission’s DMM website and does not specifically identify where the responsive information is located in the publicly available documents, as required by your Honors’ May 25th Ruling."

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