United States of America Before the Federal Energy Regulatory Commission
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UNITED STATES OF AMERICA BEFORE THE FEDERAL ENERGY REGULATORY COMMISSION NRG Energy, Inc. ) ) Docket No. EC12-134-000 GenOn Energy, Inc. ) NRG ENERGY, INC. AND GENON ENERGY, INC. MOTION FOR EXPEDITED CONSIDERATION Pursuant to Rule 212 of the Commission's Rules of Practice and Procedure, NRG Energy, Inc. ("NRG") and GenOn Energy, Inc. ("GenOn") (collectively, the "Applicants") move for expedited consideration of their Application filed in the above-referenced proceeding. Specifically, the Applicants request that the Commission issue an order ruling on their Application no later than December 13, 2012, which is the expected date for the issuance of a ruling on the Merger by the New York Public Service Commission ("NYPSC") – the last required state regulatory approval. No protests of the Application have been filed and, to the Applicants' knowledge, there are no outstanding issues pending that would suggest that the proposed Merger will not be consistent with the public interest. Issuance of the Commission's decision by December 13, 2012 will allow the Applicants to close their Merger with appropriate time to complete the manual accounting processes associated with closing in the middle of December, which will minimize the possibility of financial accounting errors. Allowing for a closing on or about December 14, 2012 would also minimize the burden on employees during the holiday season. Currently, there are only two outstanding approvals pending before the Merger can be closed: that of this Commission and of the NYPSC. The other required approvals/clearances all have been obtained, as follows: 1. On September 21, 2012, the Department of Justice notified the Applicants that it had terminated its review under the Hart-Scott-Rodino Act. 2. The Texas Public Utility Commission issued its approval on October 25, 2012. 3. The Nuclear Regulatory Commission ("NRC") issued its “Threshold Determination” on November 1, 2012, concluding that the proposed Merger does not involve any direct or indirect transfer of control over NRC licenses that would require NRC approval. 4. The shareholders of NRG and GenOn each voted on November 9, 2012 to approve the Merger. The Applicants have requested that the NYPSC issue its approval by the end of the year. Because the NYPSC acts only at its regularly scheduled meetings, this means that the NYPSC ruling is likely to occur at its December 13, 2012 meeting, which is the last scheduled NYPSC meeting in 2012. Assuming that the NYPSC grants its approval at that time, the Applicants otherwise would be prepared to close their Merger on or about December 14, 2012. Good cause exists for the Commission also to rule no later than December 13, 2012. The Applicants submitted their Application, including a detailed competition analysis, four months ago. The Application shows that the proposed Merger easily meets all standards established by the Commission for finding that a proposed transaction is consistent with the public interest. No protest has been filed asserting otherwise. As the Commission is aware, the longer a proposed merger is pending, the more disruption there is to the business of the merger applicants and to their employees. Issuance of an order by December 13, 2012 will minimize that disruption. Additionally, the timing is especially important here, where the accounting implications of a mid-month close are 2 exacerbated by the fact that year-end holidays are approaching. Allowing sufficient time to facilitate a mid-month close in the face of the holidays will reduce the potential for accounting errors and possible Sarbanes Oxley issues. CONCLUSION For the above reasons, the Applicants respectfully request the Commission to rule on their Application no later than December 13, 2012. Respectively submitted, /s/ Mitchell F. Hertz /s/ Mike Naeve Mitchell F. Hertz Mike Naeve Kirkland & Ellis LLP Matthew W.S. Estes 655 15th Street, N.W. Kathryn Kavanagh Baran Washington, DC 20005 Skadden, Arps, Slate, Meagher & Flom LLP 202-879-5000 1440 New York Avenue, N.W. Washington, DC 20005 202-371-7000 Christopher C. O'Hara Michael L. Jines General Counsel of Gulf Region & Reliant Executive Vice President, General Counsel, Energy Chief Compliance Officer and Corporate NRG Energy, Inc. Secretary 1201 Fannin Street GenOn Energy, Inc. Houston, TX 77002 1000 Main Street 713-537-2245 Houston, TX 77002 832-357-7465 Abraham Silverman Assistant General Counsel – Regulatory Debra Raggio NRG Energy, Inc. Vice President & Assistant General Counsel 211 Carnegie Center Government and Regulatory Affairs Princeton, NJ 08540 GenOn Energy, Inc. 609-524-4696 601 13th Street, N.W. Suite 850 North Washington, DC 20005 202-585-3809 Counsel to NRG Energy, Inc . Counsel to GenOn Energy, Inc. December 5, 2012 3 CERTIFICATE OF SERVICE I hereby certify the foregoing Answer was served this 5th day of December, 2012 on the official service list maintained by the Secretary in this proceeding. /s/Matthew W.S. Estes Skadden, Arps, Slate, Meagher and Flom, LLP 1440 New York Avenue, N.W. Washington, DC 2000 .