COM/MP1/avs Mailed 7/13/2007
Decision 07-07-007 July 12, 2007
BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA
Order Instituting Rulemaking on the
Commission’s Own Motion for the Purpose of
Considering Policies and Guidelines Regarding Rulemaking 04-09-003
the Allocation of Gains from Sales of Energy, (Filed September 2, 2004)
Telecommunications, and Water Utility Assets.
OPINION GRANTING INTERVENOR COMPENSATION
TO THE UTILITY REFORM NETWORK FOR SUBSTANTIAL
CONTRIBUTIONS TO DECISION (D.) 06-05-041 AND D.06-12-043
This decision grants the request of The Utility Reform Network (TURN)
for $40,701.13 in compensation for its claimed contribution to D.06-05-041 and
D.06-12-043. We make minor changes to the requested amount to account for
errors in the claimed hourly rates for one of TURN’s attorneys and its expert. 1
The Commission opened this proceeding to develop gain on sale2 rules
applicable to the water, energy and telecommunications industries. In
D.06-05-041, the Commission adopted such rules, and in D.06-12-043, it
addressed applications for rehearing of D.06-05-041. TURN, working jointly
with the Commission’s Division of Ratepayer Advocates (DRA), participated
actively in the proceeding, submitting detailed briefs and comments on the
1 TURN requested $40,786.13.
proposed decisions and alternates to the decisions. While a few issues remain,
D.06-05-041 resolved most of the issues presented in Rulemaking (R.) 04-09-003.
In its initial request for compensation, TURN noted that DRA had taken
the “laboring oar” in litigating the issues in the case. Therefore, by ruling dated
March 28, 2007, the assigned Administrative Law Judge (ALJ) asked TURN for
more information about its claimed hours on the case:
TURN states that DRA took the “laboring oar” on most of
their joint submissions, but claims compensation for 138 hours
of attorney time and 3.75 hours of expert consultant time.
TURN does not provide information that permits us to assess
whether its costs were reasonable.
TURN makes no showing that DRA reasonably required
TURN’s participation or expertise in order to adequately
advocate its own recommendations on the specified issues.
TURN makes no showing that it provided a different
perspective than DRA’s, or that its efforts influenced DRA to
alter its predisposed position.
On April 13, 2007, TURN supplemented its request to answer the ALJ’s
questions. We address its request for compensation, and the supplement, below.
Requirements on Awards of Compensation
The intervenor compensation program, enacted in Pub. Util. Code
§§ 1801-1812, requires California jurisdictional utilities to pay the reasonable
costs of an intervenor’s participation if the intervenor makes a substantial
contribution to the Commission’s proceedings. The statute provides that the
utility may adjust its rates to collect the amount awarded from its ratepayers.
2 Essentially, the utility realizes a gain when it sells property for more than it paid for
(Subsequent statutory references are to the Public Utilities Code unless otherwise
All of the following procedures and criteria must be satisfied for an
intervenor to obtain a compensation award:
1. The intervenor must satisfy certain procedural
requirements including the filing of a sufficient notice of
intent (NOI) to claim compensation within 30 days of the
prehearing conference (PHC), or in special circumstances
at other appropriate times that we specify. (§ 1804(a).)
2. The intervenor must be a customer or a participant
representing consumers, customers, or subscribers of a
utility subject to our jurisdiction. (§ 1802(b).)
3. The intervenor should file and serve a request for a
compensation award within 60 days of our final order or
decision in a hearing or proceeding. (§ 1804(c).)
4. The intervenor must demonstrate “significant financial
hardship.” (§§ 1802(g), 1804(b)(1).)
5. The intervenor’s presentation must have made a
“substantial contribution” to the proceeding, through the
adoption, in whole or in part, of the intervenor’s contention
or recommendations by a Commission order or decision.
(§§ 1802(i), 1803(a).)
6. The claimed fees and costs are reasonable (§ 1801),
necessary for and related to the substantial contribution
(D.98-04-059), comparable to the market rates paid to
others with comparable training and experience (§ 1806),
and productive (D.98-04-059).
For discussion here, the procedural issues in Items 1-4 above are
combined, followed by separate discussions on Items 5-6.
No prehearing conference (PHC) in this matter was held. Ordinarily, a
party is required to file a notice of intent to claim intervenor compensation after a
PHC. If no PHC conference is held, the intervenor must show in its request for
intervenor compensation that it meets the requirements of the intervenor
compensation statute. TURN has done so in its request.
Section 1802(b)(1) defines a “customer as A) a participant representing
consumers, customers or subscribers of a utility; B) a representative who has
been authorized by a customer; or C) a representative of a group or organization
authorized pursuant to it articles of incorporation or bylaws to represent the
interests of residential or small business customers.”
In this case, TURN is a customer as defined in paragraph C because TURN
is a group authorized pursuant to its articles of organization and bylaws to
represent and advocate the interests of residential and small commercial
customers of electrical, gas, water and telephone utilities in California.
TURN asserts that it meets the financial hardship condition of the
intervenor compensation statute through a rebuttable presumption of eligibility,
pursuant to § 1804(b)(1), because TURN met this requirement in another
proceeding within one year of the commencement of this proceeding (ALJ ruling
dated July 27, 2004 in Rulemaking (R.) 04-04-003). TURN therefore qualifies for a
ruling of eligibility for compensation on the merits of this pleading and through
the rebuttable presumption created by R.04-04-003.
TURN filed its request for compensation on February 16, 2007, within
60 days of D.06-12-043 being issued.3 In view of the above, we find that TURN
has satisfied all the procedural requirements necessary to make its request for
compensation in this proceeding.
3 No party opposes the request.
In evaluating whether a customer made a substantial contribution to a
proceeding we look at several things. First, did the Commission adopt one or
more of the factual or legal contentions, or specific policy or procedural
recommendations put forward by the customer? (See § 1802(i).) Second, if the
customer’s contentions or recommendations paralleled those of another party,
did the customer’s participation materially supplement, complement, or
contribute to the presentation of the other party or to the development of a fuller
record that assisted the Commission in making its decision? (See §§ 1801.3(f) and
1802.5.) As described in § 1802(i), the assessment of whether the customer made
a substantial contribution requires the exercise of judgment.
In assessing whether the customer meets this standard, the
Commission typically reviews the record, composed in part of
pleadings of the customer and, in litigated matters, the
hearing transcripts, and compares it to the findings,
conclusions, and orders in the decision to which the customer
asserts it contributed. It is then a matter of judgment as to
whether the customer’s presentation substantially assisted the
Should the Commission not adopt any of the customer’s
recommendations, compensation may be awarded if, in the judgment of the
Commission, the customer’s participation substantially contributed to the
decision or order. For example, if a customer provided a unique perspective that
enriched the Commission’s deliberations and the record, the Commission could
find that the customer made a substantial contribution. With this guidance in
mind, we turn to the claimed contributions TURN made to the proceeding.
4 D.98-04-059, 79 CPUC2d 628, 653 (1998).
TURN claims the following contributions (or lack thereof) to the decisions
at issue (as shown in its original compensation request and its April 13, 2007
TURN submitted the following pleadings jointly with
DRA: joint opening comments on November 3, 2004,
joint reply comments on December 8, 2004, joint
comments on the Brown Proposed Decision on
January 5, 2006, joint comments on the Chong Alternate
Proposed Decision (APD) filed April 17, 2006, and
joint reply comments on the Chong APD filed on
April 24, 2006. TURN states that much of the initial
drafting work on these pleadings was done by DRA,
but that its work focused on the issues of 1) the
theoretical underpinnings of the allocation of the gain
on sale between shareholders and ratepayers, 2) the
proper allocation for both depreciable and
non-depreciable property, and 3) the need for
overturning the allocation established in the Redding II
TURN also analyzed tax treatment of abandoned plant
and major asset exclusion.
TURN did not contribute to the work concerning
specific issues related to water utilities.
In its initial showing, TURN outlined the contributions it made jointly with
DRA or joint contributions by “ratepayer representatives.”5 In virtually every
citation to a contribution, TURN cited the joint work of TURN/DRA. It was
5 For example, TURN stated, “The contribution of ratepayer advocates is evidenced most
explicitly in the section discussing the theoretical justification for allocating gain to
ratepayers”; “The Commission soundly rejected the arguments of the utilities, which
were rebutted by TURN and DRA, that property ownership entitles the utilities the gain
on sale”; “the Commission decided to allocate 100% of the gain/loss from depreciable
Footnote continued on next page
therefore not possible to determine which work was TURN’s, leading the ALJ to
request supplemental information. TURN’s April 13, 2007 response to that
request for supplementation contains contentions that we must address before
turning to specifics.
TURN states that it
notes the somewhat mixed signals the Commission is sending
on the subject of intervenors cooperating with DRA in
proceedings where the staff’s positions are likely to overlap at
least somewhat with those of intervenors. In other forums the
Commission has strongly encouraged such coordination, even
to the point of presenting joint witnesses and cross
examination of utility witnesses. But if the result of such
successful coordination, such as we achieved in the instant
proceeding, is an additional requirement of more detailed
accounting detailed accounting of the exact nature of TURN’s
contribution to the joint pleadings and analysis and an
accounting of the total time spent by both TURN and DRA, it
is likely that the Commission will see less such efforts.
TURN’s concern is misplaced, and ignores the requirements the intervenor
compensation statute places on all intervenors to justify their requests. A party
that jointly works with another must show that its own contributions were
substantial. TURN did not do this. Its entire compensation request talked about
work done by TURN and DRA, and never sorted out the different issues the
parties focused on or work they did. TURN and all intervenors must always
show that their own time and efforts made a substantial contribution, regardless
of whether they work alone or with others.
property sale to ratepayers, a position espoused by TURN and DRA in our comments.”
Further, given that DRA is charged by statute to raise ratepayer issues, 6 it
is not always clear that the additional contribution by a ratepayer representative
eligible for intervenor compensation adds value. We recognize that there may be
many proceedings where the issues are substantial and division of the workload
is most efficient. We also agree that sometimes the force of joint comments may
be greater than those contributed by a sole party.
Thus, we reject TURN’s claim that we are discouraging joint action by
parties. We encourage it where it makes sense. However, again, intervenors
must comply with the statutory requirements and demonstrate substantial
With these points made, we turn to TURN’s specific claims in the
April 13, 2007 supplement. TURN states that it took the lead in drafting the
sections concerning tax issues, exceptional cases and abandoned plant; and that it
conducted research and formulated the key policy positions concerning the
“theoretical underpinnings” of gain on sale allocation, risk theory and allocation
of non-depreciable property.
TURN also states that its attorneys and consultants expended the
following time on the following specific tasks, and we discuss our decision on
each item below:
Mr. Nusbaum spent 31.5 hours conducting research on
behalf of TURN and DRA on the history of gain on sale
policy in energy and telecom; the distinctions between
depreciable and non-depreciable property; the application
of gain on sale policies in other states; the economic theory
underlying gain on sale allocation; and the Redding II
6 See, Pub. Util. Code § 309.5(a).
decision. Mr. Nusbaum read over 400 pages of law review
articles and utility economics articles concerning these
issues and prepared a memo summarizing the research to
support joint strategy and positions.
Discussion: This issue was central to the Commission’s decision, and
TURN should be compensated for its time.
Mr. Nusbaum spent 14.25 hours on the issue of whether
Incumbent Local Exchange Carriers (ILECs) should be
permitted to be removed from the proceeding. He
researched the current application of gain on sale policies
to New Regulatory Framework (NRF) carriers; developed a
joint strategy with DRA; and reviewed and edited this
section of draft pleadings.
Discussion: The Commission dismissed ILECs from the proceeding.
However, it was appropriate for TURN to address the issue as the ILECs made
detailed filings on the issue.
Mr. Nusbaum spent 8.5 hours in 2004 in meetings and
conference calls to discuss and develop joint positions, as
well as in reading and analyzing the pleadings of other
parties. Mr. Nusbaum spent 11.75 hours in 2006 preparing
for and attending ex parte meetings in which TURN
actively advocated on the issue of allocation of the gain on
sale of non-depreciable property, and working on
comments concerning the alternate proposed decision
(analyzing the alternate proposed decision, reviewing and
editing comments on the alternate, reviewing the
comments of other parties on the alternate proposed
Discussion: This time is reasonable and directly contributed to the outcome
of the case. Thus, it is compensable.
Mr. Nusbaum spent approximately 18.25 hours (15 in 2004
and 3.25 in 2006) reviewing and editing drafts of joint
pleadings and joint comments on proposed decisions.
Discussion: This time is reasonable and directly contributed to the outcome
of the case. Thus, it is compensable.
Mr. Nusbaum devoted 1.5 hours to the application for
Discussion: This very modest effort is appropriate.
Mr. Hawiger spent approximately 14.5 hours drafting
sections of pleadings addressing tax issues and exceptional
cases that should not be treated by a general gain on sale
rule, including treatment of abandoned plant.
Discussion: The Commission rejected TURN’s abandoned plant claim, but
it was appropriate to raise it, and TURN should be compensated for its time. The
tax issue was important to the Commission’s final determinations as well.
Mr. Hawiger spent approximately 5 hours in meetings
with DRA addressing policy issues, primarily the issue of
risk and the allocation of gain on sale on nondepreciable
Discussion: The risk and allocation issues were central to the Commission’s
decision. Thus, this time is compensable.
Mr. Hawiger spent approximately 11 hours reviewing and
editing joint pleadings and 3.5 hours reading the pleadings
submitted by other parties.
Discussion: Reviewing pleadings, without more, might not be evidence of
a substantial contribution, but given that this review led to important work in the
substantive areas the Commission did address, this time was appropriately
Mr. Hawiger spent 17 hours on the compensation request,
which was billed at half the normal hourly rate.
Discussion: Time spent on a reasonable compensation request is
compensable at half the hourly rate, as TURN claims here.
Expert Consulting Hours
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TURN requests compensation for a total of 7.25 hours of
time for Mr. William Marcus. Mr. Marcus provided expert
advice and drafted pleadings concerning the specific issue
of tax treatment of gain on sale proceeds, potential need for
exceptional treatment for certain transactions and the
historic treatment of abandoned plant.
Discussion: This very modest number of hours is appropriately
compensable given that the Commission addressed both the tax and abandoned
plant issues and needed various points of view to reach its prescribed outcome.
Reasonableness of Requested Compensation
TURN requests $40,786.13 for its participation in this proceeding for work
performed in 2004 and 2006, as follows:
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Table 1: Attorney Expense Summary
ATTORNEY Substantive Compensation Hours Percent Total
Work Related Claimed Compensation
Billing Hourly Hours Hours Hours Hours
Period Rate Expended Claimed Expended Claimed Expended Claimed
Hawiger 2004 $270 24.00 24.00 24.00 24.00 100.00% $6,480.00
2005 $270 4.75 4.75 4.75 4.75 100.00% $1,282.50
2006 $280 5.75 5.75 17.00 8.50 22.75 14.25 62.64% $3,990.00
Finkelstein 2004 $395 0.50 0.50 0.50 0.50 100.00% $197.50
Michel Florio 2004 $470 2.50 2.50 2.50 2.50 100.00% $1,175.00
Bill Nusbaum 2004 $365 69.25 69.25 69.25 69.25 100.00% $25,276.25
2006 $380 17.00 17.00 17.00 17.00 100.00% $6,460.00
TOTAL 116.75 108.25 92.72% $38,381.25
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Table 2: Consulting Fee Summary
Expert Period Rate Hours Total Expenses
Marcus 2004 195 6.087 $1,185.60
2005 No time billed8 0
2006 210 1.17 $245.70
TOTAL 7.25 $1,431.30
Table 3: Direct Expenses
EXPENSE CATEGORY AMOUNT
Lexis Research $966.24
FedEx, Fax and Phone $7.34
TOTAL REQUEST $40,786.13
In general, the components of this request must constitute reasonable fees
and costs for the customer’s preparation for and participation in a proceeding
that resulted in a substantial contribution. The issues we consider to determine
reasonableness are discussed below.
7 Adjusted in accordance with Supplemental Information Concerning TURN’s Request
for Compensation, Appendix C, filed April 13, 2007.
8 In its filing entitled Supplemental Information Concerning TURN’s Request for
Compensation, Appendix C, filed April 13, 2007, TURN indicates that Marcus billed no
time in 2005. This is a change from its original request.
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Hours and Costs Related to and Necessary
for Substantial Contribution
We first assess whether the hours claimed for the customer’s efforts that
resulted in substantial contributions to Commission decisions are reasonable by
determining to what degree the hours and costs are related to the work
performed and necessary for the substantial contribution.
We discuss the specifics of TURN’s efforts above, and find that TURN has
demonstrated its substantial contribution and justified the time it spent on the
proceeding. Especially in its supplement, TURN documented its efforts by
presenting a daily breakdown of its hours, accompanied by a brief description of
each activity. The hourly breakdown reasonably supports the claim for total
hours. Since we find that TURN’s efforts made a substantial contribution to
D.06-05-041 and D.06-12-043, even where we did not wholly adopt TURN’s
recommendations, we need not exclude from TURN’s award compensation for
We next take into consideration whether the claimed fees and costs are
comparable to the market rates paid to experts and advocates having comparable
training and experience and offering similar services.
TURN seeks the following hourly rates for its attorneys, and cites, where
available, cases that have already adopted those rates. (For William Nusbaum’s
2006 work, TURN requests a rate of $380.00 adopted in D.06-11-009. However,
that decision approved a rate of $375.00 – not $380.00 – for Nusbaum’s work in
2006 and we adjust TURN’s award accordingly.) Where the Commission has
already adopted a rate, we approve it again here, as follows:
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Table 4: TURN Hourly Rates
Attorney 2004 Rate 2005 Rate 2006 Rate
Marcel Hawiger $270 $270 $280
D.05-04-031 D.06-04-029 D.06-10-018, p. 39
Michel P. Florio $470 No time billed No time billed in
D.05-01-029 in this year this year
Robert Finkelstein $395 No time billed No time billed in
D.05-04-014, p. 7 in this year this year
William $365 No time billed $3759
Nusbaum D.05-04-014, p. 7 in this year D.06-11-009, p. 31
The Commission has already approved the 2004 and 2006 billing rates for
TURN’s expert William Marcus, as follows, and we approve them again here. 10
Expert Period Rate Hours Total Expenses
William Marcus 2004 195 6.0811 $1,185.60
2005 No time billed12 0
2006 210 1.17 $245.70
TOTAL 7.25 $1,431.30
D.98-04-059 directed customers to demonstrate productivity by assigning a
reasonable dollar value to the benefits of their participation to ratepayers. The
costs of a customer’s participation should bear a reasonable relationship to the
benefits realized through their participation. This showing assists us in
determining the overall reasonableness of the request.
9 Adjusted from $380 claimed in error.
10 D.06-04-029, p. 9, issued on April 13, 2006 in A.04-07-044.
11 Adjusted in accordance with Supplemental Information Concerning TURN’s Request
for Compensation, Appendix C, filed April 13, 2007.
12According to Supplemental Information Concerning TURN’s Request for
Compensation, Appendix C, filed April 13, 2007.
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TURN states that the benefits of its participation in this proceeding cannot
be readily quantified as the proceeding addressed only policy going forward.
However, we quantified this effort in connection with Aglet Consumer Alliance’s
(Aglet) request for compensation in this proceeding.
the most apparent benefit [of D.06-05-041] is ratepayer
retention of one half [now 67% in accordance with
D.06-12-043] of gains on sale of real property. The
Commission rejected utility requests that shareholder keep all
such gains. The dollar value to ratepayers of this outcome is
uncertain, but it could reach millions of dollars in the event a
utility sells a single parcel of real property. If one gives Aglet
even a small share of the credit for this outcome, the ratepayer
benefits of Aglet’s participation in this proceeding will
substantially exceed Aglet’s costs. Ratepayers will also gain
intangible benefits from the setting of reasonable dollar limits
for the adopted rules, and from Aglet’s contributions
regarding assets that move in and out of rate base.
For the same reasons, we find that TURN‘s participation in this proceeding
was productive. Overall, the benefits of TURN’s contributions to D.06-05-041
and D.06-12-043 justify compensation in the amount requested.
The itemized direct expenses submitted by TURN include costs for Lexis
research and phone bills, and total $ 973.58. The cost breakdown included with
the request shows the miscellaneous expenses to be commensurate with the
work performed. We find these costs reasonable.
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As set forth in the tables below, we award TURN $40,701.13:
$ 38,296.2513 Attorney time billed to case
$1,431.30 Expert witness time billed to case
$ 973.58 Costs
$ 40,701.13 Total award
This rulemaking proceeding affected a broad array of utilities. As such,
we find it appropriate to authorize payment of the compensation award from the
Commission’s intervenor compensation program fund, as described in
Consistent with previous Commission decisions, we order that interest be
paid on the award amount (at the rate earned on prime, three-month commercial
paper, as reported in Federal Reserve Statistical Release H.15) commencing on
May 2, 2007, the 75th day after TURN filed its compensation request, and
continuing until full payment of the award is made.
We remind all intervenors that Commission staff may audit their records
related to the award and that intervenors must make and retain adequate
accounting and other documentation to support all claims for intervenor
compensation. TURN’s records should identify specific issues for which it
requested compensation, the actual time spent by each employee or consultant,
the applicable hourly rate, fees paid to consultants, and any other costs for which
compensation was claimed.
13This reduction to the requested amount reflects the fact that our precedent awards
Nussbaum $375 for work in 2005, rather than the $380 TURN claims.
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Waiver of Comment Period
This is an intervenor compensation matter. Accordingly, as provided by
Rule 14.6(c)(6) of our Rules of Practice and Procedure, we waive the otherwise
applicable 30-day comment period for this decision.
Assignment of Proceeding
Michael R. Peevey is the assigned Commissioner and Sarah R. Thomas is
the assigned Administrative Law Judge in this proceeding.
Findings of Fact
1. TURN has satisfied all the procedural requirements necessary to claim
compensation in this proceeding.
2. TURN made a substantial contribution to D.06-05-041 and D.06-12-043 as
3. TURN requested hourly rates that are reasonable when compared to the
market rates for persons with similar training and experience.
4. TURN requested related expenses that are reasonable and commensurate
with the work performed.
5. The total reasonable compensation is $ 40,701.13.
6. This proceeding affected a broad array of utilities.
7. The appendix to this opinion summarizes today’s award.
Conclusions of Law
1. TURN has fulfilled the requirements of Pub. Util. Code §§ 1801-1812,
which govern awards of intervenor compensation, and is entitled to intervenor
compensation for its claimed compensation incurred in making substantial
contributions to D.06-05-041 and D.06-12-043.
2. TURN should be awarded $ 40,701.13 for its contribution to D.06-05-041
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3. Consistent with Rule 14.6(c)(6), the comment period for this compensation
decision should be waived.
4. Today’s award should be paid from the Commission’s intervenor
compensation program fund.
5. This order should be effective today so that TURN may be compensated
without further delay.
O R D E R
IT IS ORDERED that:
1. The Utility Reform Network (TURN) is awarded $ 40,701.13 as
compensation for its substantial contributions to Decision (D.) 06-05-041 and
2. Within 30 days of the effective date of this decision, TURN’s award shall be
paid from the Commission’s intervenor compensation program fund, as
described in D.00-01-020. Payment of the award shall include interest at the rate
earned on prime, three-month commercial paper as reported in Federal Reserve
Statistical Release H.15, beginning May 2, 2007, the 75th day after the filing date
of TURN’s request for compensation, and continuing until full payment is made.
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3. The comment period for today’s decision shall be waived.
This order is effective today.
Dated July 12, 2007, at San Francisco, California.
MICHAEL R. PEEVEY
DIAN M. GRUENEICH
JOHN A. BOHN
RACHELLE B. CHONG
TIMOTHY ALAN SIMON
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Compensation Decision Summary Information
Decision: D0707007 No
Decision(s): D0605041 and D0612043
Author: ALJ Thomas
Payer(s): Intervenor Compensation Program Fund
Amount Amount Reason Change/
Intervenor Claim Date Requested Awarded Multiplier? Disallowance
The Utility Reform June 20, 2006 $40,786.13 $40,701.13 No Failure to justify
Network hourly rate
First Hourly Fee Year Hourly Fee Hourly Fee
Name Last Name Type Intervenor Requested Requested Adopted
Marcel Hawiger Attorney TURN $270 2004 $270
Marcel Hawiger Attorney TURN $270 2005 $270
Marcel Hawiger Attorney TURN $280 2006 $280
Michel Florio Attorney TURN $470 2004 $470
Robert Finkelstein Attorney TURN $395 2004 $395
William Nusbaum Attorney TURN $365 2004 $365
William Nusbaum Attorney TURN $380 2006 $375
William Marcus Expert TURN $195 2004 $195
William Marcus Expert TURN $210 2006 $210
(END OF APPENDIX)