David Applebaum Quoted by Inside FERC Story on 2017 Outlook for Market Manipulation Cases

Inside FERC has quoted Akin Gump energy regulation, markets and enforcement partner David Applebaum in the article “Market manipulation to keep FERC litigants busy into 2017, with nearly $600 million at stake.”

Applebaum discusses, among other things, FERC (Federal Energy Regulatory Commission)’s decision not to alter its court review process in manipulation cases. Using a case against Etracom as an example, in which more than $2.8 million in civil penalties and disgorged profits were assessed, he said the fact that FERC went ahead with filing a motion to affirm civil penalties without any discovery taking place “shows that the position of the agency is still to litigate its de novo review [position] where it hasn’t yet been decided.”

With the judge in the case setting the issue for hearing, Applebaum said that FERC may have to decide “whether it’s worth continuing to fight because, at that level, you start to have consensus and then you have to decide whether it’s worth appealing that issue as opposed to finally moving towards the merits of these cases.”

One case that could come to a quick resolution in 2017, according to Applebaum, is that involving City Power. In its manipulation case, Applebaum explained, “The judge said some things about FERC’s theory of manipulation that FERC, no doubt, took to be helpful, and following that, FERC moved for summary judgment.”