New York Court Grants Stay Of Enforcement Of PSC Order Revoking ESCO's License, Orders PSC To Show Cause Why Stay Should Not Be Continued And Why Revocation Should Not Be Annulled

January 14, 2020

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Reporting by Paul Ring • ring@energychoicematters.com

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The New York Supreme Court for Albany County issued an order directing that, pursuant to CPLR 7805, enforcement of the New York PSC's, "Order Revoking Atlantic Power & Gas LLC's Eligibility to Serve Customers in New York" ("Revocation Order") issued on Dec. 12, 2019, is stayed pending adjudication of an appeal of the order brought by Atlantic Power & Gas LLC

As first reported by EnergyChoiceMatters.com, the New York PSC revoked the ESCO eligibility of Atlantic Power & Gas, LLC for what the PSC said was Atlantic Power & Gas, LLC's failure to obtain verifiable consent for re-enrollment of customers during a winback process. See more background on the PSC's revocation order here

The Court ordered, "that sufficient cause being alleged therefore, pending further Order of this Court, enforcement of the Revocation Order is stayed, and Respondent [the PSC], it's [sic] agents, officers, employees, successors, assigns and all persons acting pursuant to the Revocation Order who receive notice of this order are hereby temporarily restrained and ordered to refrain from taking any action in furtherance of the Revocation Order[.]"

The Court further ordered that the PSC shall show cause why the Court should not grant Atlantic Power & Gas LLC's application for a Stay of the Revocation Order pending adjudication of the appeal on the merits

The Court further ordered that the PSC shall show cause why Atlantic Power & Gas LLC's appeal should not be granted, and why an order and judgment should not be entered in Atlantic's favor annulling the Revocation Order; awarding Petitioner reasonable attorneys' fees and other litigation costs that they will have incurred to prosecute the proceeding; and granting Atlantic such other and further relief as to the court seems proper and just

In a statement, the PSC's press office said concerning the matter that, "The PSC is confident that its decision to revoke Atlantic’s eligibility to operate as an ESCO in New York will be upheld by the court after its review."

In a statement, Atlantic Power & Gas LLC (APG) said, "APG is grateful for the Stay issued by Supreme Court Judge Ryba. We look forward to obtaining judicial review of the PSC’s deeply flawed, unfair and one-sided administrative process. In the meantime, we will continue to provide service and value to our customers."

The Court also ordered that, during the pendency of the proceeding and while any stay is in effect, Atlantic Power & Gas LLC shall obtain third-party verification, either telephonic or writing, using language agreed upon by the parties, prior to processing any reinstatements under UBP § 5.D.6

Thomas Puchner of Phillips Lytle LLP, representing APG, obtained the stay of PSC’s order.

Index No. 900146-20

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