An 11-1 en banc opinion concluded that ERCOT lacked sovereign immunity against fraud claims by a power producer. The opinion noted, inter alia, that this conclusion was consistent with ERCOT not receiving tax revenue, with the structure of the PUC’s regulations about ERCOT liability, and with the law about derivative immunity for “self-regulated organizations.” The Court also rejected ERCOT’s alternative argument that the plaintiff’s claims fell within the PUC’s exclusive jurisdiction.

dissent “would conclude that the original panel opinion was not clearly erroneous, the majority’s decision undermines the constitutional-avoidance doctrine, and the PUC has exclusive jurisdiction over Panda’s complaints …”

The Texas Lawbook has further detail. (By way of general background, Erwin Chemerinsky’s 2001 article “Against Sovereign Immunity” remains a classic on that side of the issue.)

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