WHOLESALE ELECTRICITY ANTI-TRUST CASES I & II

Filed 2/26/07

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

STORY CONTINUED FROM PART I..

The court of appeals also rejected the plaintiff's claim that "market-based rates are not within FERC's exclusive jurisdiction over wholesale rates." (Grays Harbor,supra, 379 F.3d 641, 649.) The federal court acknowledged that FERC had changed its policies from requiring filed rates to allowing market-based rates. However, traditional preemption principles continue to apply because, "by asking the court to set a fair price, Grays Harbor is invoking a state rule (specifically, contract law) that would interfere with the method by which the federal statute was designed to reach its goals (specifically, FERC regulation of wholesale electricity rates). To permit Grays Harbor to receive in its court action what is essentially a refund would create a conflict with FERC's authority over wholesale rates. And such a result would make state law stand as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress under the FPA." (Id. at p. 650, fn. omitted.) The court ruled the contract claims would interfere with FERC's exclusive jurisdiction to set wholesale rates and were barred by field preemption, conflict preemption, and the filed rate doctrine. (Id. at pp. 648, 650, 651.)

In the next case, Snohomish,supra, 384 F.3d 756, the court extended the reasoning in Grays Harbor, supra, 379 F.3d 641, from the contract field to the antitrust field. The federal court found that preemption rules applied to preclude a California state law antitrust court action that was essentially challenging market-based rates. The court explained its reasoning:

"The fundamental question in this case is whether, under the market-based system of setting wholesale electricity rates, FERC is doing enough regulation to justify federal preemption of state laws. The answer to this question is controlled by two recent decisions of this court: Dynegy, [supra], 375 F.3d 831, and Grays Harbor, [supra], 379 F.3d 641. Under the system at issue here, FERC has waived many of the requirements that applied under the cost-based system. For example, the actual prices are no longer filed with FERC 60 days before they can be charged and the utilities do not provide FERC with detailed schedules of their costs. Instead, the price of wholesale electricity is determined in the markets operated by the PX and the ISO. [] FERC continued to oversee wholesale electricity rates, however, by reviewing and approving a variety of documents filed by the defendants, the PX, and the ISO." (Snohomish,supra, 384 F.3d 756, 760-761; italics added.)

The federal court of appeals then gave several examples of how FERC was continuing to exercise its regulatory power to a sufficient degree to justify continued federal preemption. These included considering applications for approval of market-based tariffs, upon a showing that the seller lacked or had mitigated its market power; requiring power sellers to file quarterly reports, which contained certain required information including the minimum and maximum rate charged and the total amount of power delivered during the quarter; and reviewing "detailed tariffs filed by the PX and the ISO, which described in detail how the markets operated by each entity would function." (Snohomish,supra, 384 F.3d 756, 761.)

Next, the court in Snohomish, supra, 384 F.3d 756, described how FERC had taken action to order wholesalers to disgorge profits that resulted from the anti-competitive practices involved in that particular case. From all of these factors, the federal court decided that preemption-related doctrines would continue to apply when market-based rates are involved, as laid out in Grays Harbor, supra, 379 F.3d 641. (Snohomish,supra, 384 F.3d 756, 760-761.) Even though Grays Harbor was a contract case, the same reasoning applied to the claims bySnohomish, alleging violations of state antitrust and unfair competition law. The court concluded that both types of claims sought to have the district court "determine the rates that 'would have been achieved in a competitive market.' This is the same determination as the 'fair price' determination that we held was barred by preemption principles in Grays Harbor. We therefore hold that Snohomish's claims are barred by the filed rate doctrine, by field preemption, and by conflict preemption." (Snohomish,supra, at p. 761.) The plaintiff's proper course of action was to apply to FERC to redress its claims that the prices in the wholesale electricity markets were not just and reasonable or that the defendants sold electricity in violation of the filed tariffs. Snohomish's state antitrust claims were dismissed for lack of jurisdiction. (Id. at p. 762.)

B

Nature of Remedies: FERC Regulatory Scheme/Antitrust Damages

Notwithstanding the above authority, plaintiffs contend that they may continue to pursue their claims for relief, damages pursued under the Cartwright Act and the UCL (alleging unlawful or unfair conduct), as alternative theories of recovery. However, in their reply brief, plaintiffs appear to admit that injunctive relief is not available, although their position is unclear. In any case, in Snohomish,supra, 384 F.3d 756, the court noted such injunctive relief has been held to be barred in this context by preemption principles, as well as the filed rate doctrine. (Id. at pp. 761-762; Dynegy, supra, 375 F.3d at pp. 849-853.) Ninth Circuit cases have held that injunctive relief under the UCL in this context of energy regulation is preempted, because it would " 'encroach upon the substantive provisions of the tariff, an area reserved exclusively to FERC, both to enforce and to seek remedy.' " (Snohomish, supra, at p. 762; Dynegy,supra, at pp. 836, 852.)

We therefore focus upon plaintiffs' remaining claims for antitrust damages for the defendants' anticompetitive conduct. "[T]he central purpose of the antitrust laws, state and federal, is to preserve competition. It is competition--not the collusive fixing of prices at levels either low or high--that these statutes recognize as vital to the public interest." (Knevelbaard Dairies v. Kraft Foods, Inc. (9th Cir. 2000) 232 F.3d 979, 988 (Knevelbaard).)

Plaintiffs' arguments require a comparison of antitrust relief to the remedies available from FERC under the FPA. One of the elements of standing to seek antitrust damages for anticompetitive conduct is a sufficient showing of injury, with respect to: " '(1) the nature of the plaintiff's alleged injury; that is, whether it was the type the antitrust laws were intended to forestall; (2) the directness of the injury; (3) the speculative measure of the harm; (4) the risk of duplicative recovery; and (5) the complexity in apportioning damages.' " (Knevelbaard,supra, 232 F.3d 979, 987.) A court must " 'evaluate the plaintiff's harm, the alleged wrongdoing by the defendants, and the relationship between them.' [Citations.]" (Ibid.; see Kolling v. Dow Jones & Co. (1982) 137 Cal.App.3d 709, 723 [antitrust standing is required under the Cartwright Act].)

It is well accepted that damages awards in antitrust cases may not be based upon "sheer guesswork or speculation." (Suburban Mobile Homes, Inc. v. Amfac Communities, Inc. (1980) 101 Cal.App.3d 532, 545.) Rather, a plaintiff seeking such damages must establish to a reasonable probability that there was some causal connection between defendant's wrongful act and the damages alleged, such as lost profits. (Ibid.) "Once that has been accomplished, the jury will be permitted to act upon probable and inferential proof and 'to make a just and reasonable estimate of the damage based on relevant data, and render its verdict accordingly.' [Citation.]" (Ibid.)

Plaintiffs say they can prove an entitlement to antitrust damages in state court, on the basis that the injuries they sustained as consumers from the anticompetitive acts of defendants are mainly unrelated to FERC's normal duties of regulating rates and tariffs for the delivery of electricity on a wholesale basis. Plaintiffs believe they can show all the elements of "antitrust injury," i.e., "(1) unlawful conduct, (2) causing an injury to the plaintiff, (3) that flows from that which makes the conduct unlawful, and (4) that is of the type the antitrust laws were intended to prevent." (Knevelbaard, supra, 232 F.3d 979, 987-988.) Plaintiffs believe that the injury they allege is distinct from the high energy prices allegedly caused by the defendants' actions in creating collusive supply, demand, and price manipulation. They say their claims "are based on duties and obligations that arise entirely independently of any 'tariff' relevant to this case." However, they admit that if FERC were to award any refunds, these would have to be offset against any court award of antitrust or UCL damages, and vice versa.

Defendants rely on the FPA statutory scheme as preempting the field, according to the basic principles explained in Lockyer,supra, 383 F.3d 1006, 1011, as follows: "The Federal Power Act governs the transmission and wholesale sales of electrical energy in interstate commerce. [Citation.] Pursuant to its authority under the FPA, FERC has exclusive jurisdiction over interstate wholesale power rates. [Citations.] The FPA requires that all rates for the transmission and sale of wholesale electricity be filed with FERC and published for public review. [Citation.] FERC is obligated to ensure that wholesale power rates are 'just and reasonable,'[citation], and applied in a non-discriminatory manner, [citations]. Indeed, FERC's authority to determine whether wholesale rates are 'just and reasonable' is exclusive. [Citation.]" (Lockyer,supra, at p. 1011, fn. omitted.) As explained in Dynegy, the wholesale producers' filings will enable FERC "to determine whether the ISO rules and regulations pertaining to those charges are reasonable, as required by the FPA. [Citation.] Once filed with a federal agency, such tariffs are the 'equivalent of a federal regulation.' [Citations.]" (Dynegy, supra, 375 F.3d at p. 839.)

Defendants accordingly argue that the FPA preempts this field and requires that any such relief be requested from FERC, such as refunds to purchasers. They point to 16 United States Code section 824d(a) et seq., providing that FERC is charged with regulating and disclosing "just and reasonable rates" as follows: "All rates and charges made, demanded, or received by any public utility for or in connection with the transmission or sale of electric energy subject to the jurisdiction of the Commission, and all rules and regulations affecting or pertaining to such rates or charges shall be just and reasonable, and any such rate or charge that is not just and reasonable is hereby declared to be unlawful." (16 U.S.C.  824d(a).) Likewise, in 16 United States Code section 824d(c), FERC is authorized to require public utilities to file and disclose "schedules showing all rates and charges for any transmission or sale subject to the jurisdiction of the Commission, and the classifications, practices, and regulations affecting such rates and charges, together with all contracts which in any manner affect or relate to such rates, charges, classifications, and services."

FERC also has the power under 16 United States Code section 824e(a) to prohibit "unjust or preferential rates, etc." and to order remedies as follows: "Whenever the Commission, after a hearing held upon its own motion or upon complaint, shall find that any rate, charge, or classification, demanded, observed, charged, or collected by any public utility for any transmission or sale subject to the jurisdiction of the Commission, or that any rule, regulation, practice, or contract affecting such rate, charge, or classification is unjust, unreasonable, unduly discriminatory or preferential, the Commission shall determine the just and reasonable rate, charge, classification, rule, regulation, practice, or contract to be thereafter observed and in force, and shall fix the same by order." In 16 United States Code section 824e(b), the commission is entitled to prescribe the effective dates of refunds that it orders. We believe the broad scope of these statutes must invoke the rule that antitrust damages will not be proper where there is a risk of duplicative recovery. The nature of the plaintiffs' alleged injury (equivalent to an entitlement to refunds) is apparently inseparable from the type of injury the antitrust laws were intended to forestall. (Knevelbaard,supra, 232 F.3d 979, 987.)

Plaintiffs, however, offer several reasons why these applications of preemption theory were wrongly decided or distinguishable from their claims, as we next discuss.

C

Alternative Approaches Relied on by Plaintiff to Preclude a Preemption Finding

Plaintiffs rely on California law (Younger, supra, 26 Cal.3d 397 and Spielholz, supra, 86 Cal.App.4th 1366) to argue no federal preemption principles apply here. They also cite to Otter Tail Power, as representing the concept that activities coming under the jurisdiction of a regulatory agency "nevertheless may be subject to scrutiny under the antitrust laws." (Otter Tail Power, supra, 410 U.S. 366, 372.) Plaintiffs seemingly argue for a "back to basics" approach to preemption, based on this older case law focusing on congressional intent. Further, they point to language in the Lockyer opinion (Lockyer, supra, 383 F.3d 1006) as showing that the federal courts here recognized that FERC is not doing a good enough job, such that alternative remedies should now be allowed through this state antitrust action. We discuss these theories in turn.

In Younger, supra, 26 Cal.3d 397, 407-408, the court explained that an agency such as the FPC (now FERC) must take antitrust considerations into account when it determines "public interest" and "public convenience and necessity," but the agency "has 'no power to insulate utilities under its regulation from the operation of the antitrust acts, or to determine when an antitrust violation has taken place. Otter Tail Power, [supra,]410 U.S. 366.' [Citations.]" (Younger, supra, at pp. 407-408.) The Supreme Court decided that a parallel piece of legislation, the Natural Gas Act, did not preclude the state attorney general from investigating possible violations of California antitrust law. It reasoned that the Act did not expressly prohibit investigation or other activity regarding state antitrust laws, and that such practices could be consistent with the federal counterparts. (Id. at p. 408.) The Supreme Court therefore found no federal preemption of the state attorney general's investigation of alleged conduct such as "price fixing, monopolization, divisions of markets, and restraint of trade," and said "[h]ypothetical conflict between federal law and enforcement of California antitrust provisions within the scope of the investigation, even if assumed, is not ground for preemption since it may never arise in fact. [Citations.]" (Ibid.) Instead, state investigations into possible violations of California statutes that were in harmony with federal antitrust laws were deemed to be permissible and not preempted. (Id. at p. 409.)

Plaintiffs argue the authority of Younger,supra, 26 Cal.3d 397, 409 is not restricted to authorizing state antitrust investigation procedures, but should also extend to authorizing state antitrust enforcement actions, such as this complaint. We disagree, because more than a "hypothetical conflict between federal law and enforcement of California antitrust provisions" (id. at p. 408) is present here, in light of the extensive nature of the FERC regulatory scheme over the wholesale electricity market. In the FPA, we are presented with " ' "a bright line easily ascertained, between state and federal jurisdiction. . . . This was done in the Power Act by making [FERC] jurisdiction plenary and extending it to all wholesale sales in interstate commerce except those which Congress has made explicitly subject to regulation by the States." ' [Citations.] This power includes the exclusive authority to determine the reasonableness of wholesale rates. [Citation.]" (Grays Harbor,supra, 379 F.3d 641, 646-647.) Plaintiffs cannot explain why the trial court would not have to second-guess FERC rate determinations in fixing antitrust damages to punish the defendants for the alleged anticompetitive conduct, because such conduct would directly affect the reasonableness of the rates charged.

In the UCL context, in Spielholz, supra, 86 Cal.App.4th 1366, those plaintiffs were allowed to proceed with false advertising allegations that a telecommunications carrier had falsely advertised a "seamless calling area" existed, where in reality, there were gaps where wireless telephone users were unable to connect calls. The Court of Appeal found no federal preemption of such claims, because the main allegations dealt with false advertising, such that any effect on rates was merely incidental. Here, however, as stated by the trial court, "This can be contrasted to the instant case, involving the FPA, where Plaintiffs' allegations concern conduct directly related to rates charged and ultimately paid." We agree with the trial court's analyses of the California case law claims, because plaintiffs have been unable to show why the alleged anticompetitive conduct by defendants inflicted any different kind of injury on them, that is separate from the rates charged and ultimately paid. This is not a case in which incidental damages are claimed to arise from conduct that is not covered by the federal legislation, such as false advertising.

In its ruling, the trial court also rejected the argument that Otter Tail Power would bar a finding of preemption, since that case concerned federal antitrust laws and not state antitrust laws. There, the Supreme Court relied on legislative history to find nothing in the FPA that would "insulate electric power companies from the operation of the antitrust laws." (Otter Tail Power, supra, 410 U.S. 366, 374-375.) Rather, to the extent that voluntary business relationships are utilized to control the interstate distribution of power (as opposed to governmental regulation), "courts must be hesitant to conclude that Congress intended to override the fundamental national policies embodied in the antitrust laws." (Ibid.) The court in Otter Tail Power held there is no basis to conclude that the limited power granted to the FPC/FERC to regulate certain aspects of electrical supply (e.g., ordering interconnections of power lines) "was intended to be a substitute for, or to immunize Otter Tail from, antitrust regulation for refusing to deal with municipal corporations." (Ibid.) This authority is distinguishable because these plaintiffs are attempting to claim injury by invoking the same subject matter covered by the government regulatory authority, but recharacterizing it as antitrust injury, all the while seeking to recover damages for overcharged payments and allegedly excessive rates. This is a distinction without a difference.

Plaintiffs next argue that the authority of MCI Telecommunications Corp. v. American Tel. & Tel. Co. (1994) 512 U.S. 218 and Maislin Industries, U.S., Inc. v. Primary Steel, Inc. (1990) 497 U.S. 116, should indicate that the kind of market-based tariffs that are in use here are not properly regulated solely by the FPA and FERC. In Lockyer,supra, 383 F.3d 1006, 1013, the court of appeals summarized and distinguished those same holdings in a closely analogous factual context (regulatory challenges by the state to the actions of the federal agency). The court explained the nature of these different market-based regulatory schemes as follows: "In MCI, the Supreme Court held that the FCC could not eliminate rate-filing requirements for any class of carrier, even when necessary to promote competitive markets. In Maislin, the Court held that the ICC could not allow common carriers to charge unfiled, privately negotiated rates lower than the filed rates, even when the carriers were in highly competitive markets. [Citation.] As the Court stated in Maislin, the existence of a competitive market 'cannot provide the ICC authority to alter well-established statutory filed rate requirements.' [Citation.]" (Lockyer,supra, 383 F.3d 1006, 1013.) The court of appeals then distinguished the FERC regulatory scheme from those schemes, in the course of rejecting an argument that the FERC procedures were fatally defective:

"The agencies in MCI and Maislin relied on market forces alone in approving market-based tariffs. In contrast, FERC's system consists of a finding that the applicant lacks market power (or has taken sufficient steps to mitigate market power), coupled with strict reporting requirements to ensure that the rate is 'just and reasonable' and that markets are not subject to manipulation. Here, FERC required the wholesale seller to file a market analysis every four months, and quarterly reports summarizing its transactions during the preceding three months. These transaction summaries include both long and short-term contracts, purportedly with reports of some sales for intervals as small as ten minutes. FERC has affirmed in its presentation before us that it is not contending that approval of a market-based tariff based on market forces alone would comply with the FPA or the filed rate doctrine. Rather, the crucial difference between MCI/Maislin and the present circumstances is the dual requirement of an ex ante finding of the absence of market power and sufficient post-approval reporting requirements. Given this, FERC argues that its market-based tariff does not run afoul of MCI or Maislin, and we agree." (Lockyer,supra, 383 F.3d 1006, 1013; italics added.)

Plaintiffs have provided no reason to depart from the above analysis, and disregard the fact that the FPA includes certain safeguards to oversee the reasonableness of rates for the wholesale electricity market. It does not make any difference that in Lockyer,supra, 383 F.3d 1006, 1013, the court of appeals reached those conclusions but nevertheless went on to criticize the regulatory efforts of FERC as "abdicating its regulatory responsibility." (Id. at pp. 1014-1015.) At that time, the court of appeals accepted the argument that "even if market-based tariffs are lawful in concept, FERC failed to administer the tariffs in accordance with their terms and abused its discretion in limiting available remedies for regulatory violations." (Id. at p. 1014.) Specifically, in Lockyer, the court found fault with FERC's past policies as follows. First, it had implemented market-based tariffs so as to virtually deregulate the wholesale electricity industry and remove it from statutorily required oversight, but without providing appropriate safeguards, such as "enforceable post-approval reporting that would enable FERC to determine whether the rates were 'just and reasonable' and whether market forces were truly determining the price." (Ibid.) Second, these crucial transactional reporting requirements were not followed during the subject time period:

"Indeed, non-compliance with FERC's reporting requirements was rampant throughout California's energy crisis. FERC itself has acknowledged that during the height of the energy crisis the quarterly reports of several major wholesalers failed to include the transaction-specific data through which the agency at least theoretically could have monitored the California energy market. [] . . . [] Thus, the very mechanism that distinguished FERC's tariff from those prohibited by the Supreme Court in MCI and Maislin was, for all practical purposes, non-existent while energy prices skyrocketed and rolling brown-outs threatened California's businesses and citizens." (Ibid.)

Notwithstanding those past institutional failures on the part of FERC, the court of appeals in Lockyer, supra, 383 F.3d 1006 acknowledged that FERC possessed "broad remedial authority to address anti-competitive behavior" (id. at p. 1015), such as ordering refunds in instances where utilities violated FPA provisions (exceeding approved rates or charging unapproved rates; FPA, 205, 16 U.S.C.  824d).^[1] FERC can also order profits to be disgorged when a regulated utility fails to comply with requirements for posting rates and nondiscrimination requirements. Such remedial powers (e.g., the power to order retroactive refunds) "is inherent in FERC's authority to approve a market-based tariff in the first instance." (Lockyer, supra, 383 F.3d at pp. 1015-1016.) This result was required in order to avoid having only an illusory remedy available from FERC under a market-based tariff system. The court of appeals therefore returned the matter to FERC "to reconsider its remedial options in the first instance." (Id. at p. 1018.)

Plaintiffs interpret all these authorities as showing that state antitrust regulation should be allowed in this instance, to fill the gaps left when FERC scaled back its activities and abdicated its regulatory responsibilities. We cannot agree, because even considering its difficult history, FERC has been provided with sufficient regulatory authority such that federal preemption principles must be applied to these antitrust/UCL challenges arising from wholesale electricity market activities. Plaintiffs acknowledge that FERC refunds are a potential remedy and offset for their claims. Moreover, they have been unable to show how any damages from the defendants' conduct, recoverable under an antitrust theory, would be separate in nature from the allegedly overpaid rates that they paid for power, which would also give rise to any refund requests. The authority of Hendricks, supra, 160 F.Supp.2d, 1155, 1163 (decided in 2001), regarding permissible concurrent theories of relief, lacks persuasiveness in light of more recent case law such as Snohomish, supra, 384 F.3d 756 and Grays Harbor, supra, 379 F.3d 641 (decided in 2004).^[2] Similarly, although plaintiffs rely on Younger, supra, 26 Cal.3d 397 to contend concurrent state antitrust regulation in the wholesale market is appropriate, that case has not been extended beyond its facts pertaining to permissible investigations regarding matters within antitrust state jurisdiction, and this is not the right case to do so. (Id. at pp. 406-409.)

Plaintiffs' attempts to rely on fundamental case law from the 1970s and 1980s are unsuccessful because they cannot bring themselves within those general exceptions to well established preemption principles. Rather, the logic of the recent Ninth Circuit authority in this area is persuasive and should be followed here. (Snohomish, supra, 384 F.3d 756.) The trial court properly sustained the demurrers on preemption grounds.

III

EFFECT OF FILED RATE DOCTRINE

The trial court's ruling stated that in light of its finding that federal preemption bars plaintiffs' claims, it was not required to reach the issue of the applicability of the filed rate doctrine. However, it concluded those principles would nevertheless bar these claims (relying on, e.g., Snohomish, supra, 384 F.3d 756;Grays Harbor, supra, 379 F.3d 641; Dynegy, supra, 375 F.3d 831, 851-853). All these issues have been fully briefed on appeal. Although the preemption ground alone would provide a sufficient basis to uphold the ruling on demurrer, in an abundance of caution, we will also address the closely related filed rate doctrine issues. Commentators have referred to this line of case law as applying and/or conflating the filed rate doctrine together with field and conflict preemption. (Cont.Ed. of the Bar, Cal. Antitrust and Unfair Competition Law (3d ed. 2005 supp.)  7.06, p. 41.)

" 'At its most basic, the filed rate doctrine provides that state law, and some federal law (e.g. antitrust law), may not be used to invalidate a filed rate nor to assume a rate would be charged other than the rate adopted by the federal agency in question.' [Citation.] '[T]he filed rate doctrine has prohibited not just a state court (or a federal court applying state law) from setting a rate different from that chosen by FERC, but also from assuming a hypothetical rate different from that actually set by FERC.' " (Grays Harbor,supra, 379 F.3d 641, 650-651.)

Also in Grays Harbor, the court addressed contemporary concerns that application of "the filed rate doctrine to market-based rates that have not been filed with FERC would be an unwise and unprecedented expansion of the doctrine." (Grays Harbor,supra, 379 F.3d 641, 651.) The court found no such barrier to the use of this doctrine, for the following reasons: "[T]he market-based rate regime established by FERC continues FERC's oversight of the rates charged. FERC only permits power sales at market-based rates after scrutinizing whether 'the seller and its affiliates do not have, or have adequately mitigated, market power in generation and transmission and cannot erect other barriers to entry.' [Citation.] According to FERC, these conditions assure that the market-based rates charged comply with the FPA's requirement that rates be just and reasonable. [Citation.] This oversight is ongoing . . . . [] Further, FERC contends that such procedures effectively constitute review of rates prior to their implementation. [Citation.]" (Ibid.) FERC also has a remedies provision regarding refunds in 16 United States Code section 824e(a) and (b).

Based on those factors, the court of appeals stated that "while market-based rates may not have historically been the type of rate envisioned by the filed rate doctrine, we conclude that they do not fall outside of the purview of the doctrine." (Grays Harbor,supra, 379 F.3d 641, 651-652.) Although this analysis of the evolution of this regulatory method is very general in nature, it is nevertheless persuasive and we have been given no reason to depart from it here. Instead, the allegations of the master complaint amount to requests for penalties for alleged anticompetitive conduct by defendants, and these potentially would interfere with FERC supervision of market-based rates and any enforcement activities allowed under FERC procedures. We are reluctant to engage in policy analysis to the extent that plaintiff requests in this fast-changing and highly regulated area.

Moreover, in light of these conclusions, we need not address in detail plaintiffs' limitations argument, that FERC was without jurisdiction as to conduct occurring prior to October 2, 2000, due to its own rulings about its assertion of jurisdiction as depending on the timing of events giving rise to claims filed. We find the filed rate doctrine to be instructive in this context and conclude that it reinforces our conclusions regarding preemption. (Dynegy, supra, 375 F.3d at pp. 852-853; Entergy Louisiana, Inc. v. Louisiana Public Service Commission (2003) 539 U.S. 39, 47 [filed rate doctrine may apply to state regulators through federal preemption under the supremacy clause].) The trial court correctly sustained the demurrer without leave to amend on this ground as well.

DISPOSITION

The judgment of dismissal is affirmed. Plaintiffs are to pay the ordinary costs on

appeal.

CERTIFIED FOR PUBLICATION

HUFFMAN, J.

WE CONCUR:

McCONNELL, P. J.

IRION, J.

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^[1] The FPA,  205, cited in Lockyer, supra, 383 F.3d 1006, 1015-1016, is now codified at 16 United States Code section 824d. (U.S.C.A. Tables, Vol. I, p. 251.)

^[2] See also, T & E Pastorino Nursery v. Duke Energy Trading and Marketing (9th Cir. 2005) 123 Fed.Appx. 813, holding UCL allegations regarding transactions in the wholesale energy market fell within the exclusive jurisdiction of FPA, where tariffs approved by FERC would provide the context for determination of any violations of the UCL.