UNITED STATES OF AMERICA
In the Matter of
Application of Stephen Forbes Cooper, LLC, PGE Trust (a to-be-formed entity) and Enron Corp. for Exemption Under the Public Utility Holding Company Act of 1935
(SEC File No. 70-10190).
File No. 3-11373
Pursuant to Rule 154 of the Commission's Rules of Practice, 17 CFR § 201.154, Enron Corp. ("Enron") hereby submits its response in opposition to the motion of Public Citizen, Inc. ("Public Citizen") for summary disposition of this administrative proceeding, and Public Citizen's request for a finding that the application in SEC File No. 70-10190 (the "Section 3(a)(4) Application") was not filed in good faith.
Enron's response is intended to correct certain misstatements of fact and to clarify that the requests made by Public Citizen have become moot as a result of subsequent events. Specifically, on March 9, 2004, Enron registered as a holding company under the Public Utility Holding Company Act of 1935 (the "Act"). On the same day, Enron requested leave to withdraw the Section 3(a)(4) Application and requested that this administrative proceeding be dismissed.1 Therefore, Public Citizen's request for summary disposition is moot.
In addition, Public Citizen's request for a finding that the Section 3(a)(4) Application was not filed in good faith is procedurally out of order. The issue of the good faith of Enron's filing is not before the Commission in this administrative proceeding. Therefore, Public Citizen's request for a finding that the Section 3(a)(4) Application was not filed in good faith is not within the scope of this administrative proceeding and should be denied.2
Further, even if the good faith issue were within the scope of this administrative proceeding, the Commission should deny Public Citizen's requested finding because the Section 3(a)(4) Application was made in good faith.
The Section 3(a)(4) Application establishes a reasonable basis for the availability of a Section 3(a)(4) exemption under existing law and or a reasonable extension of existing law. The Section 3(a)(4) Application cites relevant Commission cases under Section 3(a)(4) of the Act that support the exemption requests in the application and demonstrates why Enron and the other applicants are entitled to relief under that precedent and the policy underlying Section 3(a)(4). Finally, the Section 3(a)(4) Application was filed for a proper purpose. Therefore, the Section 3(a)(4) Application satisfies the objective factual and legal threshold for a good faith filing.
In conclusion, Enron respectfully requests that the Commission deny Public Citizen's motion.
William S. Lamb
Dated March 9, 2004
1 Stephen Forbes Cooper, LLC and PGE Trust may, however, submit a separate application under Section 3(a)(4) of the Act in the future.
2 Moreover, determining whether to develop information about (or otherwise investigate) the issue of an applicant's good faith in filing for an exemption under the Act is a decision uniquely within the Commission's discretion in the administration of the Act and related securities laws. Cf. e.g., Block v. SEC, 50 F.3d 1078 (D.C. Cir. 1995) (declining to require the Commission to institute a hearing under section 2(a)(19) of the Investment Company Act of 1940 in response to a petition filed by a third party challenging the disinterested status of an investment company's directors).
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