Thursday, February 21, 2019

FERC Loses Again on ‘De Novo’ Review

By Rich Heidorn Jr.

A federal judge last week handed FERC another defeat in its battles with traders over how courts review market manipulation allegations.

U.S. District Judge M. Hannah Lauck, of the Eastern District of Virginia, ruled Dec. 28 that Kevin and Rich Gates’ Powhatan Energy Fund is entitled to a de novo trial governed by the federal Rules of Civil Procedure and the federal Rules of Evidence rather than a more limited appellate-style review (Civil Action No. 3:15cv45).

FERC market manipulation Powhatan Energy Fund

Kevin and Rich Gates | Powhatan Energy Fund

The court noted its decision was consistent with rulings in five other district courts that have considered the issue, including FERC’s cases against Barclays Bank, City Power Marketing and Maxim Power.

‘Riskless’ Trades

In 2015, FERC ordered the Gates brothers and their associates to pay $34.5 million in penalties and disgorged profits for allegedly making riskless back-to-back up-to-congestion trades in PJM to profit on line-loss rebates. The defendants contend their trades were not riskless and thus not market manipulation. (See FERC Orders Gates, Powhatan to Pay $34.5 Million; Next Stop, Federal Court?)

Powhatan and its codefendants opted out of what the court called the “default option” of challenging their penalties before an administrative law judge and, upon appeal, the D.C. Circuit Court of Appeals. Instead, they chose an “alternate” option under the Federal Power Act, forcing FERC to issue a show cause order and asking the district court to “review de novo the law and the facts involved.”

FERC contended that the court’s review should be limited to the “the extensive factual and legal findings in the commission’s order and the substantial documentary and testimonial evidence contained in the administrative record.” Commission lawyers said the “administrative record” should be defined as “the materials filed by the commission’s Enforcement litigation staff and by respondents in the show cause proceeding as well as the commission’s orders issued in that proceeding,” and the commission’s penalty order.

“Should the court decide that additional fact finding is required on a discrete issue, the court is free to permit limited discovery, testimony, argument, etc., on that discrete issue,” FERC said. “Had Congress intended to require a trial, it could have done so … [and] has done exactly that in providing for trial de novo under other statutes.”

Due Process Concerns

But Lauck said FERC’s interpretation had “little basis in the statute or common sense” and could violate the defendants’ due process rights.

The court said that although FERC’s proposed “administrative record” includes almost 14,400 pages, “it does not include the entire investigative record, and the court has no ability to discern what products of the investigation FERC omitted or why.”

While Powhatan submitted arguments and evidence to FERC during the investigation, they were not permitted to take discovery, and the materials in the administrative record “were never tested under any evidentiary standard and may not be admissible under the federal Rules of Evidence,” Lauck wrote.

“Respondents have had, to date, no opportunity to compel any witnesses or documents or to cross examine any of the commission’s witnesses. Neither have they been able to test the reliability or veracity of the commission’s evidence through the evidentiary standards of either the federal Rules of Evidence or the [Administrative Procedures Act]’s requirement that ‘irrelevant, immaterial or unduly repetitious evidence’ be excluded in formal hearings.”

The court ordered FERC to refile its complaint, or an amended complaint within 30 days, with Powhatan responding within another 30 days.

Lauck declined to rule on Powhatan’s request for a jury trial, citing “the possibility that this action could be resolved [by settlement] before the court need decide the issue.”

Mixed Success in Courts

FERC hasn’t had an easy time prosecuting market manipulation, as defendants have become increasingly willing to make their cases in the courts.

Following a series of losses on procedural issues, FERC agreed in November to sharply reduce the penalty against Barclays over claims that it manipulated Western electricity markets a decade ago. (See FERC Settlement Cuts Barclays Market Manipulation Fine.)

In August, FERC closed its case against City Power over line-loss rebates for $2.7 million in fines after initially seeking more than $16 million. The settlement came after a U.S. district court rejected City Power’s motion to dismiss and FERC’s motion for summary judgment. (See Trader Agrees to Pay $2.7M in Win for FERC.)

Maxim Power agreed in 2016 to pay $8 million to settle a complaint that it manipulated the New England power market in a fuel-switching scheme. (See Maxim Power to Pay $8M to Settle Fuel-Switching Case.)