Energy Enforcement Update
Today, the U.S. District Judge presiding over the FERC v. Barclays case (Judge Nunley) issued an order requesting supplementary briefing in the case. This order appears to indicate the judge is amenable to accepting FERC’s view of proceedings before the court.
In particular, Judge Nunley requests supplementary briefing on the issue of separating the court’s determination of disgorgement from a determination of Barclays’ liability and the amount in penalties, as discussed in the Joint Status Report. FERC had acknowledged that record development may be appropriate for the disgorgement issue.
Judge Nunley states (emphasis added): “The Court reserves issuing a scheduling order at this juncture. The parties’ briefing should assume a scenario in which the Court, for the purposes of reviewing civil penalties, conducts a review of the record identified by FERC at page 16 of the Joint Status Report. The parties’ briefing should also assume briefing is completed in a manner similar to the schedule proposed by FERC at page 17 of the Joint Status Report. The parties need not address the scope of de novo review under section 31(d)(3) of the Federal Power Act.”
Should this order foreshadow how the district court deals with the record and the right of the respondent to pretrial discovery, cross examination of witnesses, and presentation of experts for the defense – it will stand in contrast to the procedural rights enjoyed by respondents in enforcement hearings before a FERC ALJ (e.g., BP).