The cities of Columbus and Cincinnati have dismissed their state court claims against FirstEnergy and Energy Harbor for the companies鈥� actions relating to House Bill 6, the nuclear and coal bailout law at the heart of a $60 million corruption case in Ohio.
鈥淭he dismissal was the result of negotiations with the defendants, the court鈥檚 ruling in our favor, and the partial repeal of HB 6,鈥� said Andrew Garth, city solicitor for Cincinnati.
The Dec. 2 does not include any admission of wrongdoing by FirstEnergy or Energy Harbor. The joint filing was made 鈥渨ith prejudice,鈥� meaning the cities cannot bring the same claims against the companies at a later time.
鈥淭he city鈥檚 claims were essentially resolved in December 2020 when the Franklin County Court of Common Pleas granted our motion to enjoin FirstEnergy and [Energy] Harbor from collecting the illegitimate fees that were authorized by House Bill 6,鈥� Garth explained. 鈥淎dditionally, the Ohio General Assembly subsequently passed legislation repealing the portions of HB 6 that were the basis for the city鈥檚 claims.鈥�
were the for two nuclear plants now run by Energy Harbor, which was formerly a FirstEnergy subsidiary known as FirstEnergy Solutions.
鈥淥ur lawsuit had the specific purpose of stopping FirstEnergy from collecting the rider payment that would have cost Columbus ratepayers $25 million,鈥� said Meredith Tucker, a spokesperson for the city attorney鈥檚 office. 鈥淲e won the suit, therefore they are not able to collect that money.鈥�
The cities also will receive money to reimburse some of the lawyers鈥� fees and other litigation costs, Garth and Tucker noted.
The total nuclear plant subsidies for the whole state of Ohio would have been roughly over the course of six years. repealed the nuclear subsidies earlier this year, as well as recession-proofing provisions that would have let utilities guarantee revenues. So, the claims in the case have become moot.
Other parts of HB 6 remain in force, including subsidies for two 1950s-era coal plants, known as the OVEC plants. Those subsidies could total . Ohio鈥檚 clean energy standards .
Moving ahead?
In a consolidated case, the office of the Ohio attorney general wants to move ahead with legal fact-finding procedures, or discovery, against FirstEnergy, Energy Harbor and others. As far as Energy Harbor and FirstEnergy are concerned, the civil racketeering case has been mostly idle since February.
鈥淎fter all, FirstEnergy has effectively admitted its guilt in federal court,鈥� Ohio Attorney General Dave Yost said in a Dec. 1. 鈥淭ime to get to the rest of the facts!鈥�
We鈥檝e asked the court to lift its order that blocks discovery in our First Energy racketeering lawsuit.
— Attorney General Dave Yost (@DaveYostOH)
After all, First Energy has effectively admitted its guilt in federal court. Time to get to the rest of the facts!
The state鈥檚 lawyers are still willing to postpone discovery against former Ohio House Speaker Larry Householder and former Ohio Republican Party Chair Matt Borges. They are the only two defendants in the federal criminal case filed in July 2020 who have not pled guilty or died.
Over the summer, the state鈥檚 lawyers added former FirstEnergy CEO Chuck Jones, its former head of external affairs Michael Dowling, and former Public Utilities Commission of Ohio Chair and companies linked to him to the case.
As of Dec. 13, no criminal charges have been filed against those individuals by either the federal or state governments. Yet filings in response to the state鈥檚 motion suggest both Energy Harbor and FirstEnergy expect new criminal charges against at least some of them.
鈥淯nindicted Defendants Are Entitled to Protection,鈥� said Energy Harbor鈥檚 . Its lawyers added that the Ohio attorney general has 鈥減urposefully foreshadowed imminent criminal proceedings against at least some of the Defendants.鈥�
Concerns about interfering with defendants鈥� rights to defend themselves 鈥渁pply equally where criminal proceedings are imminent or reasonably foreseeable,鈥� which could especially be the case for defendants added most recently, the filing said.
鈥淭hese individuals were added as defendants precisely because of allegations connecting them to HB 6,鈥� FirstEnergy鈥檚 said. The company鈥檚 lawyers added that 鈥渋t ignores reality to suggest that these individuals 鈥� would not ignore the Fifth Amendment if subjected to discovery requests.鈥�
Jones and Dowling also don鈥檛 want the case to move forward, there is a 鈥渧ery real threat of a criminal prosecution against some defendants,鈥� which could affect key witnesses and evidence. Randazzo鈥檚 lawyer argued there is no evidence of Randazzo鈥檚 wrongdoing, but said assertions from the government suggest criminal charges could be forthcoming.
鈥淐an there be any legitimate debate that additional, criminal proceedings are under consideration?鈥� the said.
FirstEnergy entered into a deferred prosecution agreement with federal prosecutors in July. As of Dec. 12, Energy Harbor had not yet been indicted for any criminal charges in connection with HB 6. Both remain potentially liable to claims by the state of Ohio.
The grant of a stay in any civil proceedings is discretionary, the Ohio attorney general鈥檚 office argued in reply. Corporations don鈥檛 have a right against self-incrimination. And 鈥渢he indicted and unindicted natural defendants cannot be used as blanket shields,鈥� the Dec. 6 said. Also, discovery is moving ahead in some shareholder litigation in federal court.
As of press time, Judge Chris Brown had not yet ruled on the issue.
In a related development, Ohio鈥檚 10th Circuit Court of Appeals Randazzo鈥檚 effort to get around Brown鈥檚 earlier order from Randazzo while he appeals the state鈥檚 attachment and garnishment of various assets. The Dec. 7 ruling limits Randazzo鈥檚 ability to dispose of assets that might pay a judgment against him if the state prevails in its civil racketeering case.
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