Given the Federal Energy Regulatory Commission’s (FERC) increased emphasis on investigating and prosecuting market manipulation, combined with civil penalties in settlements and enforcement actions in the tens and hundreds of millions of dollars, energy companies cannot afford to be lax in their compliance or response to enforcement proceedings.
Lawyers in our energy, regulation, markets and enforcement practice regularly defend participants in the energy sector in investigations and enforcement actions before FERC, the Department of Justice, the Commodity Futures Trading Commission (CFTC) and other federal agencies, Congress, state public service commissions and state legislatures. We also represent clients in investigations by the North American Electric Reliability Corporation and various Independent System Operators (ISOs) and Regional Transmission Organizations (RTOs) and their market monitors.
Our FERC investigations practice is led by a former director of the Division of Investigations in the Office of Enforcement at FERC. While employed by the government as director and deputy director of the Division of Investigations, this leader was involved at the highest levels in every major legal, policy, investigation, settlement and litigation matter occurring at FERC related to enforcement from 2012 until he joined Akin Gump Strauss Hauer & Feld LLP in 2016. He also served as the Division of Investigations liaison with the CFTC’s Division of Enforcement. Our team includes another former FERC Enforcement lawyer who worked on major market manipulation investigations and enforcement actions (and related federal court litigation) in both the natural gas and power sector while at the agency. Another key aspect of our energy enforcement team—reflective of our approach to handling investigations, settlements and enforcement actions—is that our lawyers draw upon the knowledge, experience, and capabilities of the firm’s energy regulatory group (which includes numerous former FERC staffers); its broader nationwide (and global) energy practice; and its litigation group (which includes many former prosecutors and complex civil litigators).
Akin Gump lawyers have participated in major enforcement actions involving electric and natural gas market participants, including traders in electric markets administered by ISOs and RTOs. Our lawyers also have significant experience developing and implementing comprehensive compliance programs to help our clients comply with the Federal Power Act (FPA), the Public Utility Holding Company Act of 2005, the Natural Gas Act and other federal energy statutes, FERC regulations, ISO/RTO market rules, and various state energy statutes and regulations. We also advise clients on compliance issues arising under the Dodd-Frank Act.
Combined with our litigation skill and depth, our broad knowledge of the relevant laws and our in-depth understanding of agency priorities, we are well-suited to help companies navigate their most difficult enforcement cases. In cases involving multiple agencies, we work closely with our global investigations and enforcement practice to put together the appropriate team of lawyers with experience within the relevant agencies.
Representative matters include:
- representing a natural gas trader in a “related-positions” market manipulation investigation
- representing a power trader in a FERC inquiry relating to financial transmission rights
- representing a merchant generation company in an investigation involving FERC regulations and electric reliability standards
- representing electric utilities in FERC self-reports involving ISO/RTO compliance issues
- counseling a vertically integrated electric utility on compliance with FERC’s Standards of Conduct and affiliate restrictions
- representing natural gas producers and marketers in self-reports related to potential violations of FERC’s open access rules, including capacity release regulations and the shipper-must-have-title rule
- representing several companies in a broad FERC inquiry into the causes of widespread electric outages in the southwestern United States in February 2011
- representing a national gas and electricity retailer in a number of investigations and enforcement proceedings before various state public service commissions involving compliance with the regulations applicable to competitive retail electric and gas markets
- representing an independent generation company in an arbitration proceeding in which an RTO alleged violations of certain market power mitigation rules regarding power sales
- representing generation companies and power marketers that made wholesale sales of electricity without first having obtained market-based rate authorization from FERC pursuant to Section 205 of the FPA
- representing a major electric utility company in an enforcement matter initiated by ReliabilityFirst Corporation
- providing advice and training to natural gas marketers, power traders, utilities, and other energy clients regarding compliance with FERC’s and the CFTC’s anti-market manipulation rules, code of conduct rules for electric and natural gas market participants, and registration and other requirements under the Dodd Frank Act.