Financial Hardship

Section 1804(a)(2)(B) allows the customer to include a showing of significant financial hardship in the NOI. Alternatively, the required showing may be made in the request for award of compensation. UDI is claiming "significant financial hardship" on behalf of the three 19th Street Neighbors, and filed a motion for a protective order so they can submit the financial information under seal.

The definition of "significant financial hardship" in § 1802(g) establishes two standards, the "cannot afford, without undue hardship, to pay" standard and the "comparison test" standard. The Commission discussed the application of these two standards in D.98-04-059. ² In that decision, the Commission discussed a parallel situation where the intervenor asserts it is a representative authorized by a group of customers, but where the "authorized pursuant to its articles of incorporation or bylaws" requirement is not met by the customers. The Commission concluded that neither the comparison test nor the undue hardship test shall be automatically applied. The Commission observed that automatic application of the comparison test could lead to abuses of the compensation program, for example, if a group of wealthy customers formed a group to avoid the costs of participation. Accordingly, the determination of which standard to apply will be made on a case-by-case basis, depending on the form of customer and the customer's specific financial hardship. ³

UDI is requesting that the Commission apply the "significant financial hardship" standard for its clients, and has not asked that the "comparison" test be applied. Once a protective order is issued, UDI states it will submit financial documents for each of the three customers who form The 19th Street Neighbors in order to document that the customers cannot afford to pay the costs of participation. The Commission will review these financial documents to determine whether these customers would experience undue financial hardship if required to pay their pro rata share of the cost of representation.

The Commission has recognized the importance of protecting the confidentiality of financial privacy. Therefore, the Commission has the procedure in place, i.e., a protective order, so that individual intervenors can seek to have their financial privacy protected when they provide it to the Commission. In reviewing the motion, the wishes of the three 19th Street Neighbors for financial privacy will be balanced against the legitimate concerns raised by Edison and PG&E in their opposition to the NOI. Edison and PG&E object to having the financial information filed under seal, shielded from discovery, since they are the very utilities who will have to pay the intervenor compensation bill at the end of the proceeding.

However, since a protective order has not yet been issued, the documents have not been submitted, and the Commission has not reviewed them. Therefore, it is not possible at this time to reach a conclusion as to whether the "significant financial hardship" standard has been met.