Tuesday, February 28, 2012

Possible BP deal could tap $14 billion in fund - Houston Chronicle

Possible BP deal could tap $14 billion in fund - Houston Chronicle: by Loren Steffy
"A settlement being discussed between BP and attorneys for hundreds of businesses and others suing over the Deepwater Horizon disaster could tap billions of dollars remaining in a claims fund set up after the accident.

BP pledged $20 billion to the fund in the summer of 2010, but only about $6 billion has been paid to Gulf Coast businesses and individuals. Under one possible deal, the fund would be closed and the balance of about $14 billion used to settle legal claims, according to a person familiar with the negotiations."

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Saturday, February 25, 2012

Diving into the wreck: BP & Kenneth Feinberg's Gulf Coast Gambit

Kenneth Feinberg

The imminent start of the first phase of the liability trial regarding the BP Gulf of Mexico oil spill is an appropriate occasion to post this abstract and a link to the text of my new article. - GWC

Diving into the wreck: BP and Kenneth Feinberg’s Gulf Coast Gambit
17 Roger Williams University Law Review 137 (2012)

by George W. Conk
The 1990 Oil Pollution Act mandate - that a party “responsible” for an oil spill establish a “procedure” to  pay interim damages - has largely removed the courts from the process of determining scope of liability and turned it over to the private ordering of the claims bureau established by the responsible parties designated by the President under the OPA.

BP put its “procedure” in the hands of a lawyer of solomonic reputation - Kenneth Feinberg.  His broad settlement authority was designed to produce both prompt compensation for current losses (without prejudice to future claims) and early settlements of claims for  any future losses.  Through its  Gulf Coast Claims Facility  BP - making interim payments - has had a nearly free hand in determining the extent of its liability under the OPA. Though plaintiffs lawyers have moved to “supervise” the process through the MDL, neither a negotiated grid nor any court ruling has defined the scope of liability.

BP’s  private claims resolution process is almost entirely unregulated.  Only after months of jaw-boning by Gulf Coast Attorneys General and the U.S. Attorney General did BP  agree to be audited.  No regulations govern responsible parties who establish a “procedure”. The GCCF’s allocations are often impenetrable.  BP’s  GCCF can be described as the pseudo-fund model for mass tort claims resolution.  Though its name suggests an independent fund, the GCCF is in fact merely BP’s statutorily compelled mechanism for satisfying economic loss and clean-up claims.  In the absence of either regulatory guidance or court rulings on scope of liability the settlement parameters are indistinct to claimants.  Even BP is uneasy because Feinberg’s settlement offers under the OPA  go well  beyond the narrow parameters of maritime courts which in spill claims have historically denied compensation to all in the supply chain except fishermen and those who suffered property damage.

 The executive branch should examine the OPA’s regulatory gap.  No regulations govern the manner in which a solvent polluter meets its statutory clean-up and compensation responsibilities.  There is no liability guidance, no audit, no reporting, no monitoring of the company’s ability to meet its obligations, no review of its success in meeting its obligations.   If the executive branch does not take this up, Congress in its oversight capacity should do so.
Postscript:  my article does not discuss the August 26 ruling by Judge Barbier that touched on the scope of liability issue.  He ruled that liability under maritime law is limited to fishermen and those who suffered property damage or personal injury. However, he suggests that the scope of liability will be broader under the Oil Pollution Act.

The block quote below gives some of the flavor. - GWC
[The Court notes that OPA does not expressly require “proximate cause,” but rather only that the loss is “due to” or “resulting from” the oil spill. While the Court need not define the precise contours of OPA causation at this time, it is worth noting that during oral argument both counsel for BP and the P(laintiffs) S(teering) (Committee) conceded that OPA causation may lie somewhere between traditional “proximate cause” and simple “but for” causation. ]
(citing CSX v. McBride, U.S. 2011)]

Black at Stuyvesant High — One Girl’s Experience - NYTimes.com

I wonder if the test for admission to the Mandarinate was the first standardized test in the world? - GWC
Black at Stuyvesant High — One Girl’s Experience - NYTimes.com:  by Fernanda Santos
"Rudi-Ann Miller, a 17-year-old senior who came to New York from Jamaica and likes to style her hair in a bun, slick and straight, like the ballerina she once dreamed of becoming.

“The Asian kids, they’re just everywhere,” she said.

When the bell rings and the school’s 3,295 students spill out of classrooms into the maze of hallways, escalators and stairs like ants in a farm, blacks stand out because they are so rare. Rudi was one of 64 black students four years ago when she entered Stuyvesant, long considered New York City’s flagship public school. She is now one of 40.

Asians, on the other hand, make up 72.5 percent of Stuyvesant’s student body (they are 13.7 percent of the city’s overall public school population), a staggering increase from 1970, when they were 6 percent of Stuyvesant students, according to state enrollment statistics. Back then, white students made up 79 percent of Stuyvesant’s enrollment; this year, they are 24 percent, and 14.9 percent systemwide."

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‘Neither Admit Nor Deny’ Settlements Draw Judges’ Scrutiny - NYTimes.com

‘Neither Admit Nor Deny’ Settlements Draw Judges’ Scrutiny - NYTimes.com:
by Edward Wyatt
"An S.E.C. commissioner, Luis A. Aguilar, told a group of securities lawyers that a recent attempt to tighten the agency’s policy of allowing a company to settle a fraud case while neither admitting nor denying any wrongdoing “applies in so few situations, it needs to be revised to be more useful and effective.”"

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Friday, February 24, 2012

Opinion analysis: Court gives police officers qualified immunity : SCOTUSblog

Opinion analysis: Court gives police officers qualified immunity : SCOTUSblog: "A Los Angeles sheriff’s detective and his supervisor may have erred in executing a search warrant that lacked probable cause, but they were not “plainly incompetent” so as to be denied qualified immunity. That was the Court’s holding yesterday in Messerschmidt v. Millender. The Court’s divided ruling declined to make any obvious sweeping revisions to its nearly thirty-year-old jurisprudence regarding immunity for officers who execute warrants lacking probable cause, although Orin Kerr here suggests at least one aspect in which the opinion could prove significant."

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Thursday, February 23, 2012

CPRBlog: Can Corporations Violate Human Rights? In Kiobel v. Royal Dutch Petroleum, the Supreme Court May Say Yes ... or No

On February 28 the Supreme Court will hear argument in Kobel. The 2d Circuit Court of Appeals held that a corporation cannot be a human rights violator because the Alien Tort statute permits only the sort of claims recognized under customary international law. For full coverage see Scotus Blog. - GWC
CPRBlog: Can Corporations Violate Human Rights? In <i>Kiobel v. Royal Dutch Petroleum</i>, the Supreme Court May Say Yes ... or No: "For over fifty years, Shell has extracted oil from Nigeria, causing great harm to the environment and people of the Niger delta. The Ogoni people living in the delta protested Shell’s operations, and in response the Nigerian government harshly oppressed them. Most infamously, in 1995 it executed the author Ken Saro-Wiwa, together with eight other leaders of the protests.

Esther Kiobel, the widow of one of the executed men, as well as other affected Ogoni, sued Shell in U.S. federal court, claiming that it aided and abetted the Nigerian government in its violations of human rights law. The plaintiffs relied on the Alien Tort Statute (ATS), a law enacted by the First Congress, in 1789, which gives federal courts jurisdiction over claims by aliens arising from torts committed in violation of international law."

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Wednesday, February 22, 2012

CPRBlog: Mardi Gras, Check. BP "Trial of the Century" Here We Come.

Robert Verchick, Center for Progressive Reform blogger, has some FAQ on the upcoming BP trial. - GWC

"Next week, squadrons of lawyers, journalists, petroleum engineers, and fisher folk are scheduled to descend on New Orleans, squeeze into a federal courtroom, and begin on Monday what the media have modestly called, “The Trial of the Century,” otherwise known as the BP Oil Spill litigation.

Whatever the rest of the century holds, it seems fair to say that this legal dispute, if it does not settle, will be the most complicated environmental trial anyone has ever seen. With a thousand plaintiffs, a galaxy of witnesses, and 20,000 exhibits, this spectacular has more moving parts than a Madonna half-time show. As the trial unfolds, I’ll provide you with some occasional shrimp-boots-on-the-ground legal blogging."

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Deepwater Horizon trial may hold many twists for BP - FT.com

Deepwater Horizon trial may hold many twists for BP - FT.com: by Ed Crooks & Sylvia Pfeiffer (free registration required)
"At 8am on Monday February 27, the trial is due to start in the civil case over the 2010 Deepwater Horizon disaster in the Gulf of Mexico in which 11 men died.
Before then, however, there could still be several dramatic turns left in the largest and most complex litigation the US has seen for more than a decade, which will rule on who was to blame for the largest oil spill in US waters.
Talks are continuing between the parties – including BP, other companies involved in the disaster, the US government, and lawyers for roughly 120,000 civil plaintiffs – over possible pre-trial settlements."

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Tuesday, February 21, 2012

Legal claims can be served via Facebook, High Court judge rules - Telegraph

Legal claims can now be served via Facebook in Britain, after a landmark ruling in the English High Court in AKO Capital, LLP v.  TFS Derivatives Limited.

Facebook signage

Legal claims can be served via Facebook, High Court judge rules - Telegraph:

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Justices to Hear Case on Affirmative Action in Higher Education - NYTimes.com

Racial integration has been a government policy goal since Brown v. Board of Education. This case - Fisher v. Texas -could say Goodbye to all that. - GWC
Justices to Hear Case on Affirmative Action in Higher Education - NYTimes.com:
by Adam Liptak
" Students in the top 10 percent of Texas high schools are automatically admitted to the public university system. Ms. Fisher just missed that cutoff at her high school in Sugar Land, Tex. She sued in 2008, challenging the way the state allocated the remaining spots using a complicated system in which race plays an unquantified but significant role.

“There thus seem five votes — Roberts, Scalia, Kennedy, Thomas and Alito — to overrule Grutter and hold that affirmative action programs are unconstitutional,” Erwin Chemerinsky, dean of the law school at the University of California, Irvine, wrote in a recent book, “The Conservative Assault on the Constitution.”

Chief Justice John G. Roberts Jr. has been particularly skeptical of government programs that take account of race. “Racial balancing is not transformed from ‘patently unconstitutional’ to a compelling state interest simply by relabeling it ‘racial diversity,’ ” he wrote, for instance, in a 2007 decision limiting the use of race to achieve integration in public schools."

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Billions Of Dollars At Stake In BP Oil Spill Trial : NPR

 Docks on the Bon Secour River sit idle nearly two years after the BP oil spill. The small fishing village of Bon Secour, Ala., is still suffering the lingering effects of the spill, despite government monitoring and assurances that Gulf seafood is not contaminated. Billions Of Dollars At Stake In BP Oil Spill Trial : NPR: Trial on limitation and apportionment issues is set to begin next Monday - February 27, 2012.  Like the first shell that comes your way the approach of trial concentrates the mind.  Lawyer - focused on risk - talk settlement. - GWC

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Monday, February 20, 2012

Settlement Talks Pick Up Ahead of BP Oil Spill Trial - NYTimes.com

Judge Carl J. Barbier

Settlement Talks Pick Up Ahead of BP Oil Spill Trial - NYTimes.com:
by John Schwartz
With the start of the high-profile trial set for next Monday, and the specter of potential liability that some experts have estimated at $40 billion, BP and other defendants are stepping up negotiations to end the litigation before Judge Carl J. Barbier of Federal District Court picks up his gavel.
“We are ready to settle, if we can do so on fair and reasonable terms,” Robert Dudley, BP’s chief executive, said this month during a conference call about the company’s earnings. “But we are preparing vigorously for trial.”
Charges from hundreds of civil cases from plaintiffs that include the United States government, state and local governments, and individuals and businesses have been consolidated in a federal courtroom here. Along with BP, defendants include Transocean, the owner of the Deepwater Horizon rig; Halliburton, the company that poured the concrete that lined the well; and Cameron International, which made the industry fail-safe device known as a blowout preventer.
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Sunday, February 19, 2012

Jefferson County, Ala., Falls Off the Bankruptcy Cliff - NYTimes.com

Is this divine punishment for Alabama's sins of slavery and segregation? If so the divine visited her wrath on victims, perpetrators, and bystanders alike. - GWC
Jefferson County, Ala., Falls Off the Bankruptcy Cliff - NYTimes.com: "ONE county jail here is so crowded that some inmates sleep on the floor, while the other county jail, a few miles down the road, sits empty.
Enlarge This Image

David Bundy for The New York Times
The Vulcan statue in Birmingham is patterned after the Roman god of the forge, reflecting the city's history as an iron and steel town.
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There is no money for the second one anymore.

The county roads here need paving, and the tax collector needs help.

There is no money for them, either.

There i"

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14th Amendment and Civil Rights Act 1866 DEBATES

Civil Rights Act of 1866 DEBATE Senate-Congressional Globe, 39th Congress 474-481, January 29, 1866
"Civil Rights Act 1866 DEBATE, Senate, Cong Globe 39th Cong 569-578 (1 Feb 1866)"

14th Amendment Senate Debate


14th Amendment - House Debate


14th Amendment Congressional Debates

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Friday, February 17, 2012

NJ Supreme Court Limits Accountants' Liability

Erasing a $38 million dollar judgment against KPMG, the state Supreme Court held Thursday that an accountant can't be held liable to third parties without specific knowledge — at the time the client relationship begins — that third parties will rely on its reports.
"An auditor is entitled to know at the outset the scope of the work it is being requested to perform and the concomitant risk it is being asked to assume," the Court said in a ruling that provides a welcome limitation of liability for the accounting industry in the state.
The justices, in Cast Art Industries v. KPMG, A-51/52-10, overturned the Appellate Division's holding that, under the Accountant Liability Act, accountants' knowledge of third-party reliance any time during their "engagement" with their client exposes them to liability.

Thursday, February 16, 2012

Most BP plaintiffs may be ineligible for compensation | NOLA.com

gulf_oil_spill_brown_whitecap.JPG Malpractice?  Sections 2713 and 2714 of the Oil Pollution Act of 1990 provides that claims shall "first be presented to the responsible party" - here BP Exploration's agent Gulf Coast Claims Facility - led by Kenneth Feinberg.  Judge Barbier - who is managing the multi district litigation - will have to decide whether that provision is jurisdictional - a condition precedent to suit, or a procedural requirement that can be remedied or avoided. 
In the B1 master complaint Order of August 26, 2011 the court held that presentment to the responsible party (BP, et al.) is a mandatory condition precedent to suit.  While he ruled on the states' claims Judge Barbier deferred dealing with the defense motions to dismiss the claims of the massive number of plaintiffs who did not first apply to the GCCF.  - GWC
Most BP plaintiffs may be ineligible for compensation | NOLA.com: "More than half of the 110,299 private claimants suing BP in the huge trial set to begin in federal court Feb. 27 have never filed with claims czar Kenneth Feinberg, calling into question whether they are eligible for compensation. That's according to numbers released by Feinberg to U.S. District Judge Carl Barbier on Wednesday. "

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BP Deepwater Horizon Securities Suit, Though Narrowed, Survives Dismissal Motion : The D & O Diary

by Kevin LaCroix
"In the wake of the disastrous April 2010 Deepwater Horizon oil spill, BP was hit with a wave of litigation from plaintiffs asserting claims of personal injury, wrongful death and property damage. The claimants also included BP shareholders raising allegations that they had been misled regarding BP safety efforts and processes. In a 129-page February 13, 2012 opinion (here), Southern District of Texas Judge Keith Ellison, while granting the defendants’ motion to dismiss certain of plaintiffs’ allegations, denied defendants’ motion to dismiss many of the allegations of BP investors who had purchased BP American Depositary Shares (ADS) on the New York Stock Exchange."

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Tuesday, February 14, 2012

Voyages>`·.¸¸.·´¯`·...¸><((((º>: Cod: grim assessment from NOAA

SawStop on Colbert Report!

sawstop on colbertSteve Gass and SawStop were featured on last night's Colbert Report (2/13/12)!!   He's ruining America, says Colbert's character by depriving us of our right to sacrifice our own fingers from those who would baby us by requiring SawStop technology.
HERE is the link and other good stuff from FineWoodworking

There is a ton of material - including links to the first plaintiff's verdict - upheld by the 1st Circuit, CPSC materials, and the famous hot dog video HERE
Steve Gass: "Steve Gass has a Ph.D. in physics and a dangerous hobby. An amateur woodworker, Gass cuts wood with table saws that spin almost 70 times a second. The saws' sharp, quickly spinning blades can chop off a finger; in fact, over 3,000 people a year lose fingers to table saws. One day in his workshop, Gass looked at his saw and wondered how quickly he could stop the blade in the event of accidental contact."
<div style="background-color:#000000;width:520px;"><div style="padding:4px;"><iframe src="http://media.mtvnservices.com/embed/mgid:cms:video:colbertnation.com:408216" width="512" height="288" frameborder="0"></iframe><p style="text-align:left;background-color:#FFFFFF;padding:4px;margin-top:4px;margin-bottom:0px;font-family:Arial, Helvetica, sans-serif;font-size:12px;"><b>The Colbert Report</b> <br/>Get More: <a href='http://www.colbertnation.com/full-episodes/'>Colbert Report Full Episodes</a>,<a href='http://www.colbertnation.com/video'>Video Archive</a></p></div></div>
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Wednesday, February 8, 2012

BP Reports Stronger Q4 Earnings in 2011 - NYTimes.com

BP crews looking for tarballs in the sand - 2010
It's morning in America on the Gulf Coast says British Petroleum. - GWC
BP Reports Stronger Q4 Earnings in 2011 - NYTimes.com: "HOUSTON — Less than two years ago, the British oil company BP was worried about its very survival as a seemingly unstoppable oil spill in the Gulf of Mexico threatened to destroy its finances and reputation."
"But on Tuesday, BP expressed renewed confidence in its future, reporting strong quarterly profits and raising its dividend to shareholders. The company also said it was eager to resolve billions of dollars in remaining private and government claims from the accident, whether through a settlement or in a trial scheduled to begin Feb. 27 in New Orleans. "
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Tuesday, February 7, 2012

Marriage Ban Violates Constitution, Court Rules - NYTimes.com

The 9th Circuit Court of Appeals has voided as violative of Equal Protection Proposition 8 - the popular referendum which barred gay marriage in California. The Federal court struck the measure, which amended the state constitution, overturning  a California Supreme Court decision affirming the right to marry on state constitutional grounds.  California Governor Jerry Brown refused to defend the referendum first as Attorney General, and now as Governor. 
The ruling is a narrow one.  It centers on the fact that Prop. 8 took away a status which some California same-sex couples had already gained while same-sex marriage was recognized in California.  Prop. 8 arbitrarily denied "equal dignity" to same sex married couples, the court concluded.  - GWC
Marriage Ban Violates Constitution, Court Rules - NYTimes.com: "“Although the Constitution permits communities to enact most laws they believe to be desirable, it requires that there be at least a legitimate reason for the passage of a law that treats different people differently,” Judge Stephen Reinhardt wrote in the decision. “There was no such reason that Proposition 8 could have been enacted.”

“All that Proposition 8 accomplished was to take away from same sex-couples the right to be granted marriage licenses and thus legally to use the designation ‘marriage,” the judge wrote, adding: “Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gay men and lesbians in California.""

Lead counsel for plaintiffs are the odd couple: David Boies and Theodore Olson (as in Gore v. Harris)
Opinion in Perry v. Brown (in his official capacity)
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Monday, February 6, 2012

After a Delay, MF Global's Missing Money Is Traced - NYTimes.com

After a Delay, MF Global's Missing Money Is Traced - NYTimes.com: "Investigators have determined what happened to nearly all of the customer money that disappeared from MF Global around the time of its bankruptcy last Oct. 31, but have not publicly disclosed their progress, fearing that doing so might cripple efforts to recover the cash and pursue potential wrongdoing, people briefed on the investigation said.

While authorities have traced hundreds of millions of dollars to banks, MF Global’s trading partners and even the firm’s securities customers, investigators remain uncertain about whether they can retrieve the money.

Some recipients were entitled to payouts from MF Global, which could make clawing back the money difficult. For instance, securities customers withdrawing their money as MF Global began to collapse were paid from accounts that belonged to futures clients, according to other people briefed on the matter."

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OTHERWISE: How Quinn Emmanuel Does it: Sugar-coated bills |

Alternative billing by "America's largest business litigation firm". - GWC
OTHERWISE: How Quinn Emmanuel Does it: Sugar-coated bills |:

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Sunday, February 5, 2012

In 2003 businessman identified foreclosure abuses

Nye Lavalle
Unlike the many whistle blowers who are ignored - especially those whose rhetoric seems overheated to those used to the way business is done - Nye Lavalle hit the nail on the head and got a response.  His charges of mortgage foreclosure fraud prompted Fannie Mae to undertake a rebuttal.  The FNMA commissioned an analysis and report by the D.C. law firm Baker & Hostetler, LLP.  The lawyers confirmed many of Lavalle's allegations, but Fannie Mae ignored their warnings, according to an account in today's Times by Gretchen Morgensen.  In 2006 Baker & Hostetler concluded:
“It is axiomatic that the practice of submitting false pleadings and affidavits is unlawful...With his complaint, Mr. Lavalle has identified an issue that Fannie Mae needs to address promptly.”
But FNMA did not promptly address the issue.  Of the seven deadly sins sloth and greed are most obviously implicated.

Saturday, February 4, 2012

North River Piers

Piers once lined the shores of Manhattan.  Remember in U.S. v. Carroll Towing the court says that a barge had to be "drilled out" and the bargehand should have been there to help out?  It probably was a barge tied to a pier like this.  You can find these pictures - and many more of the North River piers in Manhattan - HERE.

Lehigh Valley Railroad Barge No. 79
the bulk cargo barge in Carroll was probably this size,
not a huge RR barge
stanchion on pier

Feds turn down request for new cod assessment | The Portland Press Herald / Maine Sunday Telegram

Feds turn down request for new cod assessment | The Portland Press Herald / Maine Sunday Telegram: "BOSTON — The nation's oceans chief has turned down a request made first by Massachusetts Sen. John Kerry for a new assessment of the health of Gulf of Maine cod.

New data indicates cod is badly overfished, and fishermen now face ruinous cuts in their catch. The data have drawn skepticism from fishermen because they show a reversal of a recent, optimistic study.

In December, Kerry asked for a new cod assessment that fishermen can trust.

National Oceanic and Atmospheric Administration head Jane Lubchenco said this month that a new assessment can't be done in time for managers to make decisions for the May start of the fishing year.

She also said the agency doesn't yet have new data needed to move ahead. She assured Kerry she is committed to helping fishermen."

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CL&P Storm Credit to Total $140 - Ellington-Somers, CT Patch

Kenneth Feinberg is reported to be an adviser to Connecticut Power and Light and to the state's Governor on administration of a refund due to customers of $140 each.
CL&P Storm Credit to Total $140 - Ellington-Somers, CT Patch:

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