AAI Opposes Filed Rate Doctrine for Electricity, Again (Simon v. KeySpan)

Oct 18 2012
Amicus Program

The AAI filed an amicus brief in the Second Circuit urging rehearing in Simon v. KeySpan after a three-judge panel affirmed the district court's dismissal of the plaintiff's antitrust claims on filed rate grounds. The AAI maintained that the panel erred in applying the filed rate doctrine, which provides immunity from antitrust damages where conduct involves regulated, filed rates, to FERC's auction system, which employs market-based rates (MBRs) that are set by competition. The AAI also argued that the court should have factored in the remedial limitations of the statutory MBR scheme in applying its newly announced legal standard for assessing whether the filed rate doctrine should apply to bar private claims involving MBRs.

This is the second brief filed by the AAI in this case; the first was submitted in support of the plaintiff's appeal from the district court's dismissal. The second brief emphasizes areas where, on rehearing, attention to arguments raised in the first brief would help prevent future reviewing courts from being mislead. The first brief is available here.

The current brief was written by AAI Senior Counsel Randy Stutz and Special Counsel Sandeep Vaheesan, with the assistance of Advisory Board Member Doug Richards.