WASHINGTON - The Nebraska public power executives and municipal power pool who were enjoined from managing a $529 million bond-funded power project and ordered to pay more than $3 million in damages to a competing agency have submitted motions for a new trial, arguing they were not treated fairly in the first one.
In two separate motions filed with a county court July 16, the nonprofit Nebraska Municipal Power Pool and three executives - J. Gary Stauffer, executive director of the NMPP, Evan Ward, NMPP's director of capital strategies, and John Harms, a gas analyst and member of the NMPP management team - argued there was "irregularity" in the court's proceedings and orders, "and an abuse of discretion ... which ... prevented ... a fair trial."
The motions claimed excessive damages had been awarded "under the influence of passion or prejudice," that the amount of damages was assessed in error, and that the ruling lacked sufficient evidence or was "contrary to law." The motions also said there were legal errors during the trial but did not go into detail.
The board of directors of NMPP voted to unanimously late last month to appeal the ruling and the motions may be a step toward an appeal.
The motions follow a July 8 ruling in whichJudge Steven D. Burns of Lancaster County District Court sided with the American Public Energy Agency, a gas purchaser and bond issuer, and prohibited Stauffer, Ward, and Harms from participating in the Central Plains Energy Project that they helped to create with alleged proprietary information from the agency.
NMPP had provided energy-related services to the APEA under contract. Burns ruled that the executives took proprietary information about prepaid gas transactions that APEA helped to pioneer and conspired to use that information to win contracts away from APEA through creation of the Central Plains project.
Burns ordered Ward and Stauffer to pay $3.3 million in damages to APEA. He also ordered the three men and the power pool to pay $477,828 in damages to Falls City, Neb., which had sued them on behalf of the National Public Gas Association, a customer of the APEA.
One day after NMPP and the three executives filed motions with the county court for a new trial, Falls City filed a counter-motion opposing a new trial. On the following day, the APEA filed a request to have its legal costs covered in the ruling.
Burns has not yet ruled on the motions.
Asked about a possible appeal of the ruling, NMPP's attorney Daniel E. Klaus said in an e-mail, "An appeal has not been filed yet because there are still pending matters before Judge Burns." The appeal-filing deadline will depend on the judge's decision on the pending motions, he said.
Market participants have said the power pool could appeal on grounds that public entities cannot have proprietary information.
The ruling could force management changes at Central Plains, which has more than $529 million of revenue bonds outstanding and plans to issue more bonds this year to finance natural gas purchases under long-term contracts. The Omaha Municipal Utilities District, a participant in the Central Plains project, said it will take over management, which many sources contend is a mostly administrative function with some accounting responsibilities.
According to the APEA's complaint and interviews with those involved, the agency was formed in the 1990s and helped to pioneer prepaid gas transactions. In prepaid gas transactions, municipal utilities use tax-exempt bonds to finance the purchase of natural gas over a period of time, while also entering into a commodity swap with a third party to hedge against the risk of volatile gas prices.
The APEA issued billions of dollars of bonds through 2005 for such transactions. One of its customers was the NPGA, which in turn sold the natural gas to the Omaha MUD, Cedar Falls, and other local systems.
The CPEP was formed in September 2006, after Ward and Stauffer successfully brokered an agreement with the MUD of Omaha, a political subdivision of Nebraska that purchases and provides utility service, including natural gas, to the Omaha metropolitan area, and Cedar Falls, also a purchaser of natural gas.
Thus, initially the CPEP consisted of MUD and Cedar Falls, which indirectly had been APEA's customers through its transactions with the NPGA.
Soon after its formation, the CPEP proposed to issue bonds to enter into a prepaid gas contract. At that time, the Omaha MUD estimated it would save more than $58 million over 20 years through participation in CPEP.
But Falls City, Neb., which filed a lawsuit against the CPEP, NMPP, and five individuals connected with Central Plains project, including Ward, Stauffer, and Harms, asking the court in Lancaster County to issue a temporary preliminary injunction to prevent the issuance of the bonds.
The court denied the injunction request, and the CPEP proceeded with a bond issue and prepaid contract in early 2007. However, the court allowed the APEA to intervene in the lawsuit to sue Stauffer and Ward. The APEA claimed the CPEP would divert business away from it after it had delivered prepaid gas on contract with local gas purchasers for more than 10 years.
In fact, the APEA entered a dry spell after the CPEP's launch, landing no contracts despite a major spike in prepaid gas deals nationwide and a previous agency average of one contract per year, court documents said.
The APEA accused Ward and Stauffer of using complex economic models or spread sheets and a copyrighted handbook explaining these transactions, as well as their detailed knowledge of APEA's relationships with MUD and Cedar Falls.
Burns ruled that the CPEP is lawful, but its creation was not. He said "unlawful or oppressive means" were used "in concert" by three executives and the NMPP.
Stauffer, Ward, and NMPP were ordered to give back the proprietary information.
