Platts’ Inside FERC Quotes Julia Sullivan on Demand-Response Ruling

For its article “Platts, ICE subpoenaed for documents on gas transactions relevant to BP investigation,” Platts’ Inside FERC quoted Akin Gump energy regulatory, markets and enforcement co-head Julia Sullivan on an administrative law judge’s order that Platts and Intercontinental Exchange (ICE) make available by June 19 seven years’ worth of documents concerning natural gas transactions.

BP America is alleged to have engaged in a “manipulative scheme,” according to Federal Energy Regulatory Commission (FERC) staff to “suppress the Gas Daily index (published by Platts)” for the benefit of positions the company held whose price was set by that index.

Sullivan noted that, in the past, Platts and ICE have sought to protect confidential information while accommodating FERC requests in those cases in which the scope and scale of the document request was appropriately tailored. She said, “It wouldn’t surprise me if they were to intervene and participate in the FERC proceeding for this limited purpose. It wouldn’t surprise me either if they were to resist the subpoena if they felt that the outcome of the FERC proceeding didn’t contain the appropriate protections for their sources and information.”

Sullivan said those subpoenaed in these cases generally want assurances that the information they provide will be targeted to a specific case and destroyed or returned subsequently. The subpoenaed parties also demand confidentiality requirements and approval to redact selected information, she noted, adding that when a reporter’s privilege under the First Amendment is claimed, “It’s pretty common for [FERC] to impose some pretty strict limitations both on the scope of discovery and on the treatment of the material that is produced.”

Sullivan noted that FERC staff generally avoid “fishing expeditions” in document requests. However, it falls on the subpoenaed party to avoid “the risk of reputational harm” by “getting the matter resolved as expeditiously as reasonably possible.”