Attorneys intend to amend countersuit vs. Socorro Electric
Attorneys representing member-owners of Socorro Electric Cooperative in a proposed class-action lawsuit will name a new representative of the class, according to papers filed last week.
Originally, Charlie Wagner, a member of the co-op’s board of trustees, was listed as the class representative in a countersuit which names the nine other trustees, four former trustees and the co-op’s former general manager as defendants. The countersuit charges the cross claim defendants with breach of fiduciary duty and fraud.
“Counsel anticipates that an amended complaint on the class action portion of this litigation (the cross claim) will be filed shortly, removing Mr. Wagner as proposed class action representative and thus as cross claim plaintiff,” reads a response to the co-op’s motion for a protective order against Wagner.
In the co-op’s motion for a protective order filed Feb. 1 in 13th Judicial District Court in Los Lunas, it asserts that Wagner has been attempting to sidestep rules of discovery by requesting information by way of the Inspection of Public Records Act.
Wagner says he was doing no such thing. He told El Defensor Chieftain that his requests for information regarding records of payments made to the Kennedy & Han, the law firm representing Socorro Electric in defense of the countersuit, was done in his role as a trustee, he said.
In the response to the motion for a protective order, Stephen Kortemeier, of Socorro’s Deschamps & Kortemeier law firm, wrote that counsel was “absolutely unaware” of Wagner’s requests for information and that it had not received any information or documents from Wagner as a result of his requests.
“It appears … that Mr. Wagner has been merely exercising his rights as a trustee to inform himself on matters affecting the financial well being of the cooperative: a responsibility clearly within his fiduciary obligations to the membership, in which he may be remiss if he doesn’t,” Kortemeier wrote.
The response asks the judge hearing the case to deny the co-op’s request for a protective order in that the matter will become moot once the amended complaint is filed. It further argues that a protective order would infringe upon Wagner’s obligations a trustee.
The filing suggests an arrangement be worked out where documents provided to Wagner in his role as a trustee and those furnished through discovery could be marked to distinguish the difference. It also asked that the judge reaffirm Wagner’s right to access information in his capacity as a trustee.
The response came in the wake of a flurry of filings by Kennedy & Han in recent weeks, including four motions to dismiss the countersuit and a motion to stay discovery.
Citing a heavy workload, Deschamps & Kortemeier asked for a one-week extension to respond to the co-op’s motions.
Tenth Judicial District Court Judge Albert J. Mitchell Jr., assigned to preside over the case by the New Mexico Supreme Court chief justice, last week granted a request for hearing to address the motions. That hearing will be held by phone next Monday morning.
The countersuit came in response to a lawsuit Socorro Electric filed against all of its approximately 10,000 member-owners in June 2010. The co-op was challenging the validity of new bylaws that require it to operate with greater transparency.
Judge Mitchell ruled against the co-op last May, saying bylaws that compel it to follow the Open Meetings Act and Inspection of Public Records Act were properly adopted and members were within their rights to impose them on what is a democratically controlled cooperative.
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