David Applebaum Quoted in Inside FERC on Judge’s De Novo Interpretation in Enforcement Case

Akin Gump energy regulation, markets and enforcement partner David Applebaum has been quoted in the Inside FERC article “Judge again sides with company over FERC on de novo interpretation in enforcement case” regarding a federal judge’s review of a FERC enforcement action against Etracom for allegedly manipulating California’s electricity market. In this particular matter from the Eastern District of California, the article reports that a judge found that the Federal Rules of Civil Procedure do apply in these cases.

According to the article, companies facing enforcement actions are pushing for discovery rights and full jury trials. Lawyers at FERC, meanwhile, have held that the judges already have everything they need to rule from the investigative or administrative record submitted to the court by the commission.

Applebaum said, “All of the written decisions on this issue have agreed with the company and not FERC.” His view, he continues, is that “FERC may soon reach the conclusion that it is no longer worth litigating this position and, instead, just agree with the decisions rendered so far that these ‘de novo review’ cases are essentially civil trials under the Federal Rules of Civil Procedure.”

Applebaum, who is a former director of FERC’s Division of Investigations, added that a new commission “may require that of FERC staff in any event,” noting that the Trump administration has three empty Republican seats to fill on the commission as well as a Democratic seat that will expire in June.