Xcel Energy 2009 Annual Report Download - page 151

Energy Services Inc. et al.; Sinclair Oil Corporation vs. e prime and Xcel Energy Inc.; Ever-Bloom Inc. vs. Xcel Energy Inc.
and e prime et al.; Learjet, Inc. vs. e prime and Xcel Energy Inc et al.; J.P. Morgan Trust Company vs. e prime and Xcel
Energy Inc. et al.; Breckenridge Brewery vs. e prime and Xcel Energy Inc. et al.; Missouri Public Service Commission vs. e
prime, inc. and Xcel Energy Inc. et al.; Arandell vs. e prime, Xcel Energy, NSP-Wisconsin et al.; NewPage Wisconsin System
Inc vs. e prime, Xcel Energy, NSP-Wisconsin et al. and Heartland Regional Medical Center vs. e prime, Xcel Energy et al.
Many of these cases involve multiple defendants and have been transferred to Judge Phillip Pro of the United States
District Court in Nevada, who is the judge assigned to the Western Area Wholesale Natural Gas Antitrust Litigation.
e prime and some other defendants were dismissed from the Breckenridge Brewery lawsuit in February 2008, but Xcel
Energy remains a defendant in that lawsuit and e prime Energy Marketing was added as a defendant in February 2008.
No trial dates have been set for any of these lawsuits. In January 2009, the parties reached a settlement agreement in
principle in the Abelman Art Glass, Ever Bloom, Fairhaven Power Company, Texas-Ohio Energy, and Utility Savings and
Refund Services cases. The terms of the settlement in principle will not have a material financial effect upon Xcel
Energy. Discovery in most of the remaining cases was completed by Dec. 5, 2009. In October 2009, the Court granted
defendants’ motion to renew their summary judgment motions and such motions were filed in November 2009. If
summary judgment is not granted, trial for all cases venued in Nevada will likely be set for 2010.
In November 2007, the Missouri Public Service Commission case was remanded to Missouri state court. On Jan. 13,
2009, the Missouri state court granted defendants’ motion to dismiss plaintiff’s complaint for lack of standing. Plaintiffs
filed an appeal and on Dec. 8, 2009, the Missouri Court of Appeals affirmed the dismissal.
In late March 2009, Newpage Wisconsin System Inc. commenced a lawsuit in state court in Wood County, Wis. The
allegations are substantially similar to Arandell and name several defendants, including Xcel Energy, e prime and
NSP-Wisconsin. In September 2009, Plaintiffs moved to consolidate the Newpage and Arandell matters. Defendants
have filed motions to dismiss and, as with Arandell, Xcel Energy, e prime and NSP-Wisconsin believe the allegations
asserted against them are without merit and they intend to vigorously defend against the asserted claims.
Environmental Litigation
Carbon Dioxide Emissions Lawsuit — In 2004, the attorneys general of eight states and New York City, as well as
several environmental groups, filed lawsuits in U. S. District Court in the Southern District of New York against five
utilities, including Xcel Energy, to force reductions in CO2 emissions. The other utilities include American Electric
Power Co., Southern Co., Cinergy Corp. and Tennessee Valley Authority. The lawsuits allege that CO2 emitted by each
company is a public nuisance as defined under state and federal common law because it has contributed to global
warming. The lawsuits do not demand monetary damages. Instead, the lawsuits ask the court to order each utility to
cap and reduce its CO2 emissions. On Sept. 19, 2005, the court granted a motion to dismiss on constitutional
grounds. Plaintiffs filed an appeal to the U. S. Court of Appeals for the Second Circuit. On Sept. 21, 2009, the Court
of Appeals issued an opinion reversing the lower court decision. On Nov. 5, 2009 the defendants, including Xcel
Energy, filed a petition for rehearing and en banc review. It is uncertain when the Court of Appeals will respond to the
petition.
Comer vs. Xcel Energy Inc. et al. — In 2006, Xcel Energy received notice of a purported class action lawsuit filed in
U. S. District Court in the Southern District of Mississippi. The lawsuit names more than 45 oil, chemical and utility
companies, including Xcel Energy, as defendants and alleges that defendants’ CO2 emissions ‘‘were a proximate and
direct cause of the increase in the destructive capacity of Hurricane Katrina.’’ Plaintiffs allege in support of their claim,
several legal theories, including negligence and public and private nuisance and seek damages related to the loss
resulting from the hurricane. Xcel Energy believes this lawsuit is without merit and intends to vigorously defend itself
against these claims. In August 2007, the court dismissed the lawsuit in its entirety against all defendants on
constitutional grounds. Plaintiffs filed a notice of appeal to the U. S. Court of Appeals for the Fifth Circuit. On
Oct. 16, 2009, the U. S. Court of Appeals for the Fifth Circuit reversed the district court decision, in part, concluding
that the plaintiffs pleaded sufficient facts to overcome the constitutional challenges that formed the basis for dismissal
by the district court. On Nov. 27, 2009, defendants, including Xcel Energy, filed a petition for en banc review. It is
uncertain when the Court of Appeals will respond to the petition.
141