In People ex rel. Brown v. Powerex Corp., ___ Cal.App.4th ___ (Jun. 11, 2007; pub ord. Jul. 11, 2007), the Court of Appeal (Third Appellate District) held that the filed rate doctrine barred the Attorney General's UCL claim in its entirety. The Court specifically rejected the AG's argument that the UCL claim did not "rely on any filed tariff term, directly affect a filed rate or tarriff provision, nor collaterally attack the reasonableness of any filed rate":
The complaint sought restitution, disgorgement of profits, civil penalties and damages as a result of Powerex’s trading activities, alleging the gaming of the market resulted in unfair payments to Powerex which harmed California electricity consumers and de-stabilized the power delivery system. Any monetary relief would be in excess of the tariffs eventually applied by FERC and therefore are barred by the filed rate doctrine. (Snohomish, supra, 384 F.3d at pp. 760-762; Dynegy, supra, 375 F.3d at p. 853; Grays Harbor, supra, 379 F.3d at pp. 651-652; TANC, supra, 295 F.3d at pp. 929-932; Enron, supra, 327 B.R. at pp. 535-537 [barring California Attorney General’s claims under UCL and CCL based on gaming the market].) Further, civil penalties are regulatory and “to impose a civil penalty upon an incident or event, without regard to whether injury was suffered, is to regulate the activity that gave rise to the incident or event.” (People v. Union Pacific Railroad Co. (2006) 141 Cal.App.4th 1228, 1257-1258.) Regulating gaming schemes by imposing penalties would grant relief in excess of the tariffs and conflict with FERC’s exclusive regulatory power over the wholesale energy market. (See Duke Energy Trading and Marketing, L.L.C. v. Davis (9th Cir. 2001) 267 F.3d 1042, 1056-1057 [state “commandeering orders directly nullify the security and default mitigation provisions of the FERC-approved CTS rate schedule, and hence cross the ‘bright line’ between state and federal jurisdiction established by the FPA”].)
The claim of entitlement to injunctive relief, too, is barred by the filed rate doctrine. (Snohomish, supra, 384 F.3d at pp. 760-762; Dynegy, supra, 375 F.3d at pp. 836-839, 852-853; see Norwood, supra, 202 F.3d. at pp. 419-420.) Further, we rejected an injunctive claim arising from the energy crisis, for lack of any “threat that the misconduct to be enjoined is likely to be repeated in the future.” (Madrid v. Perot Systems Corp. (2005) 130 Cal.App.4th 440, 465.) The Attorney General’s complaint and briefing predicates liability on conduct during the energy crisis. Gaming could not be successfully attempted now, when the ISO, FERC and the Attorney General are all watching the power companies like hawks.
Because the complaint fails to state any good claim for relief the trial court properly sustained the demurrer.
Slip op. at 21-23.
One of the people who responded to The UCL Practitioner Reader Survey said they would like to see more reports about government use of the UCL. Truth be told, very few published opinions involve public prosecutor actions, which is the primary reason why I don't report much on them. It's difficult to gather information about trial-level cases. Most of the time I know nothing about them until a published opinion comes down from an appellate court.
By the way, thanks to everyone who has participated in the reader survey so far. The survey is still open and you can click here to participate.