Does the Natural Gas Act Preempt State-Law Antitrust Lawsuits? – Supreme Court Arguments

By Kenneth Irvin, Terence Healey, Natalie Mitchell, Christopher Polito and Mary Treanor

On July 1, 2014, the U.S. Supreme Court granted a petition to hear an appeal by several companies contending that state-law antitrust claims were precluded by the federal Natural Gas Act and, therefore, fell under the exclusive jurisdiction of the federal government, including the Federal Energy Regulatory Commission.  These state-law claims alleged manipulation of gas prices, as provided on published indices, during the western energy crisis from 2000 to 2002.  The underlying Ninth Circuit decision was said to conflict with settled law, and the Supreme Court heard oral arguments on Monday, January 12, 2015.  This case raises an intriguing question about what the Justices aim to achieve given the intervening expansion of FERC’s anti-manipulation authority in the 2005 Energy Policy Act – a point stressed by FERC and the Solicitor General in their brief opposing cert.  read more

Posted in Antitrust, Cases, FERC, Oil & Gas, Power, Supreme Court

U.S. Department of Commerce Finds ‘Dumping’ and Unlawful Subsidization of Solar Product Imports

By Kenneth Irvin, Greg Kusel, and Natalie Mitchell

On December 16, 2014, the U.S. Department of Commerce announced its affirmative final determinations regarding imports of certain crystalline silicon photovoltaic products used for solar generation. The Department determined that China and Taiwan violated antidumping duty law by selling solar products in the U.S. at significantly less than fair value.  Additionally, it determined that China violated countervailing duty law by providing subsidies to Chinese solar manufacturers. read more

Posted in Energy Infrastructure, Finance, Power, Renewables

2014 FERC Enforcement Report Emphasizes Internal Compliance Procedures, Self-Reporting, and Importance of Cooperation

By Doron Ezickson, Gregory Lawrence, Greg Kusel and Christopher Polito

The Federal Energy Regulatory Commission’s (FERC) Office of Enforcement (Enforcement) 2014 Report on Enforcement (Report), issued on November 20, 2014, provides an overview of and statistics regarding FERC’s enforcement activities during the fiscal year 2014 within Enforcement’s four divisions: Investigations, Audits and Accounting, Energy Market Oversight, and Analytics and Surveillance.  The Report provides information regarding Enforcement’s non-public activities and priorities during the fiscal year 2014.  The 2014 Report emphasizes the value FERC Enforcement places on self-reporting and internal compliance procedures.  read more

Posted in Enforcement and Investigations, FERC, Oil & Gas, Power, Regulation

The Fate of FERC Demand Response Order No. 745: Efforts to Adapt While the Judicial and Complaint Processes Play Out

Since our last update regarding the D.C. Circuit’s vacatur of FERC Order No. 745 in Electric Power Supply Ass’n v. FERC ( “EPSA”), several developments have occurred in EPSA and related proceedings.  The appeals process and related complaints at FERC will take time to play out.  In the meantime, certain market participants have weighed in that EPSA should be applied narrowly only to energy (and not capacity or ancillary services markets), while certain market operators have made moves to maintain demand response programs–at least until the final fate of Order No. 745 is known.  All of this will occur, moreover, while existing and future supply and demand resource commitments are analyzed against the backdrop of another winter season.  read more

Posted in FERC, Oil & Gas, Power, Regulation

FERC Revokes MBR Authorization of 26 Suppliers for Delinquent EQRs

By Kenneth Irvin, Terence Healey and Katherine Vorhis

On October 30, 2014, the Federal Energy Commission issued an order revoking the market-based rate (“MBR”) authorization of twenty-six (26) retail suppliers for failure to timely file Electric Quarterly Reports (“EQRs”). The FERC had notified these suppliers on October 9, 2014, along with seventeen other entities, that their MBR authority would be revoked unless the sellers filed all delinquent EQRs within fifteen days. FERC did not revoke MBR authorization from the other entities that received a delinquency notice on October 9 but have since filed either missing EQRs or requested additional time.  read more

Posted in FERC, Oil & Gas, Power, Regulation

New MiFID I Consultation Paper Creates Further Challenges for Commodity Market Participants

By Assia Damianova, Doron Ezickson, Nick Shiren, Jonathan Flynn, Antoinette Maginness and Adam Topping

On 29 September 2014, ESMA published a consultation paper (the Consultation Paper) seeking industry feedback for guidelines relating to certain commodity derivatives, namely those falling under C6 and C7 of Annex I of the Markets in Financial Instruments Directive (MiFID).  One of the reasons for publication of the guidelines is to ensure consistent treatment of these contracts under the European Market Infrastructure Regulation (EMIR) which has been in force throughout the European Union (EU) since 12 August 2012.  EMIR was implemented with the objective of increasing transparency and reducing risk in the European OTC derivatives markets.  The obligations under EMIR include certain clearing, risk mitigation and reporting requirements for parties entering into OTC derivatives.  read more

Posted in Commodity Trading, EMIR, Enforcement and Investigations, MiFID, Oil & Gas, Power, Regulation

First Criminal Prosecution for Spoofing: High Frequency Trading Firm Owner Indicted in Northern District of Illinois

By Jodi Avergun, Anthony Mansfield, Gregory Mocek, Paul Pantano, Isabelle Corbett and Jonathan Flynn

On October 2, 2014, the U.S. Attorney for the Northern District of Illinois announced the indictment of Michael Coscia, the owner of Panther Energy Trading (“Panther”), for six counts of commodities fraud and six counts of spoofing. This indictment represents the first ever criminal case to use the anti-manipulation authority provided in the Dodd-Frank Act to charge spoofing in the context of commodities transactions, and is one of the first major cases announced by the newly-formed Securities and Commodities Fraud section of the U.S. Attorney’s office for the Northern District of Illinois.   read more

Posted in Cases, CFTC, Commodity Trading, Enforcement and Investigations, Mining/Metals, Oil & Gas, Power, Regulation

On to the Supreme Court? The D.C. Circuit Denies FERC’s Request for Rehearing En Banc of its Decision to Vacate FERC’s Demand Response Rule

By Kenneth Irvin, Gregory Lawrence, Terence Healey and Thomas Millar

On September 17, 2014, the United States Court of Appeals for the District of Columbia Circuit denied the Federal Energy Regulatory Commission’s request for rehearing en banc of the D.C. Circuit’s decision to vacate FERC’s wholesale demand response compensation rule. The D.C. Circuit’s original decision striking down FERC’s demand response program remains in place, but the Court has not yet issued its mandate.  Rather, on September 22, 2014 FERC and other interested parties moved to stay issuance of the mandate pending the parties’ consideration whether to petition the Supreme Court for a writ of certiorariread more

Posted in FERC, Oil & Gas, Power, Regulation

Clear Rift Highlighted by Commissioners’ Lack of Action on New England’s Most Recent Forward Capacity Auction Results

By Kenneth Irvin, Gregory Lawrence, Terence Healey and Thomas Millar

On September 16, 2014, the Federal Energy Regulatory Commission’s four Commissioners issued statements explaining a 2-2 deadlock between Chairman LaFleur and Commissioner Moeller on the one hand and Commissioner Clark and new Commissioner Bay on the other, over whether to accept rates resulting from ISO New England Inc.’s (“ISO-NE”) most recent capacity auction as just and reasonable.  In addition to fueling concern that capacity resources in New England cannot necessarily rely on the results of future capacity auctions, the sharp contrast  among the Commissioners’ statements provides a glimpse of what to expect when Norman Bay takes over as Chairman on April 15, 2015. Commissioner Bay’s joint statement with Commissioner Clark also does little to alleviate concerns raised by some during his confirmation proceedings that Bay’s past experience as head of FERC’s Office of Enforcement will be featured prominently during his tenure as Chairman.  read more

Posted in FERC, Oil & Gas, Power, Regulation

Update to New CME Rule on Disruptive Trading Practices Summary Chart

By Anthony Mansfield, Paul Pantano, Sohair Aguirre and Neal Kumar

On August 28, 2014, the Chicago Mercantile Exchange Inc., the Board of Trade of the City of Chicago, the New York Mercantile Exchange, Inc., and the Commodity Exchange, Inc. (collectively, the “CME”) submitted a notice of a rule adoption to the Commodity Futures Trading Commission (the “CFTC”) regarding new Rule 575, titled “Disruptive Practices Prohibited.”  Rule 575 became effective September 15, 2014.  The CME also issued Market Regulation Advisory Notice RA1405-5 (“CME MRAN”) which, with new Rule 575, provides regulatory guidance on various types of prohibited disruptive order entry and trading practices.  On September 11, 2014, the Futures Industry Association (“FIA”) hosted a webinar with staff from the CME to discuss new Rule 575 and the CME MRAN.  This Clients & Friends Memo updates our previous memo on this topic based on FIA’s webinar.  In addition, on September 15, 2014, CME issued an updated MRAN with “minor modifications” based on CME’s discussions with the CFTC.  The updated MRAN did not change the September 15, 2014 effective date.  read more

Posted in CFTC, Commodity Trading, Oil & Gas, Regulation