SC96222
Missouri Public Service Commission v. Union Electric Company, d/b/a Ameren Missouri
Cole County
Proper method of calculating “avoided costs” in utility’s energy efficiency plan
Listen to the oral argument: SC96222 MP3 file
Ameren was represented during arguments by James B. Lowery of Smith Lewis LLP in Columbia; the commission was represented by John D. Borgmeyer of the commission in Jefferson City.

As permitted by the state’s energy efficiency investment act, Ameren Missouri in January 2012 proposed to the public service commission a plan giving the utility’s electric customers incentive to participate in energy efficiency programs in 2013, 2014 and 2015. Ameren and the commission agreed to certain modifications in the plan, which the commission approved in August 2012. The plan included a demand-side programs investment mechanism. The commission’s rules implementing the act define such mechanism and its components, including a “utility incentive,” defined as an approved methodology for allowing the utility to receive a certain portion of annual net shared benefits. A dispute subsequently arose over what estimates of “avoided costs” – future costs a company will not incur to generate, transmit and distribute electricity no longer needed as a result of the energy efficiency program – Ameren should have used to calculate the net monetary benefits from the plan. In June 2015, commission staff filed a complaint alleging Ameren failed to comply with the plan as well as a rule governing the methodology by which an “avoided cost” should be calculated, resulting in higher net shared benefits for 2014 than what staff believed they should have been. In November 2015, the commission entered its order in favor of staff. Ameren appeals.

This appeal presents several questions for the Court. One is whether the commission’s order regarding future avoided costs was unreasonable or disregarded binding terms of the investment mechanism outlined in Ameren’s energy efficiency plan. Related issues include whether the plan required estimates of future avoided costs to remain fixed and whether Ameren needed a variance from the rule governing avoided costs. Another question is whether the commission’s order disregarded the plain and ordinary meaning of “methodology” or misinterpreted that term under its own rules. An additional question is whether the commission’s order was unreasonable, supported by the record, or arbitrary or capricious, or amounts to an abuse of discretion.

SC96222_Ameren_brief
SC96222_Public_Service_Comm'n_brief
SC96222_Ameren_reply_brief



SC95796
Robin Wright-Jones, et al. v. Missouri Ethics Commission
St. Louis city
Challenge to amounts assessed for campaign reporting violations
Listen to the oral argument: SC95796 MP3 file
Wright-Jones and her committee were represented during arguments by Bernard F. Edwards Jr., an attorney in St. Louis; the ethics commission was represented by Joshua Divine of the attorney general’s office in Jefferson City.

Robin Wright-Jones formed a candidate’s campaign committee for her successful 2008 campaign for the state senate and for future elections. Under state law, a candidate must file with the state’s ethics commission periodic reports of contributions received and expenditures made related to the candidate’s campaign for public office so long as the candidate maintains a continuing committee and continues to receive contributions and make expenditures. Following an investigation and hearing, the ethics commission issued an order finding probable cause that Wright-Jones and her committee violated campaign finance disclosure laws. Wright-Jones and her committee sought review from the administrative hearing commission, which imposed fees of nearly $230,000 against Wright-Jones and her committee for violations including reporting violations, use of cash expenditures, and personal and other unauthorized use of campaign funds. Wright-Jones and her committee sought review in the circuit court, which affirmed the administrative hearing commission’s decision. Wright-Jones and her committee appeal.

This appeal presents several questions for this Court. One is whether the ethics commission has authority to assess fees for violations of state law or administrative regulations or whether such “fees” actually constitute “fines” assessed improperly by an administrative agency in violation of article I, section 31 of the state constitution. Another question is whether the ethics commission can assess fees or fines in the absence of a reconciliation agreement with the candidate or campaign committee or a court order. An additional question is whether the amount assessed against Wright-Jones exceeded the ethics commission’s statutory authority, was unsupported by the record, was excessive or violated the Eighth Amendment to the federal constitution.

SC95796_Wright-Jones_brief
SC95796_Ethics_Comm'n_brief

 

SC96189
State ex rel. Bayer Corporation, Bayer Healthcare LLC, Bayer Essure Inc. and Bayer Healthcare Pharmaceuticals Inc. v. The Honorable Joan L. Moriarty
St. Louis city
Challenge to jurisdiction in case involving non-Missouri plaintiffs and to whether federal law preempts all claims

Listen to the oral argument: SC96189 MP3 file
Bayer was represented during arguments by Jonathan F. Cohn of Sidley Austin LLP in Washington, D.C.; the plaintiffs were represented by G. Sean Jez of Fleming Nolan Jez LLP in Houston, Texas. 

In April 2016, a group of 92 plaintiffs filed a lawsuit in St. Louis against Bayer Corporation, Bayer Healthcare LLC, Bayer Essure Inc. and Bayer Healthcare Pharmaceuticals Inc. (collectively, Bayer), alleging they suffered various injuries as a result of using Essure, a medical device manufactured and distributed by Bayer as a form of permanent female contraception. The parties dispute the extent of Bayer’s contacts with Missouri. Only seven of the plaintiffs are from Missouri, and the other 85 allege no connection with Missouri. The plaintiffs asserted Bayer is subject to general and specific personal jurisdiction in Missouri in part by doing business in Missouri and deriving revenue in Missouri by marketing Essure to women in Missouri. Bayer moved to dismiss the petition, alleging it was not subject to personal jurisdiction in Missouri with respect to the non-Missouri plaintiffs and all the plaintiffs’ claims were preempted by federal law. Alternatively, Bayer moved to sever claims by individual non-Missouri plaintiffs and transfer those individual plaintiffs to appropriate venues. In December 2016, the circuit court entered its order overruling Bayer’s motions. Bayer seeks this Court’s writ prohibiting the circuit court from enforcing its order.

This case presents several questions for this Court. One is whether Bayer has shown it is entitled to the extraordinary relief of a permanent writ of prohibition based on the law in effect when the circuit court entered its order. Another question is whether Bayer consented to or otherwise is subject to personal jurisdiction in Missouri with respect to claims of non-Missouri plaintiffs. The other is whether federal law preempts the claims of all the plaintiffs. A further question involves the extent, if any, to which certain decisions issued in 2017 apply – this Court’s decision in State ex rel. Norfolk Southern Railway v. Dolan and the United States Supreme Court’s decisions in BNSF Railway v. Tyrrell and Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County.

SC96189_Bayer_brief