Energy Enforcement Update

Last week, in the FERC v. Barclays court case, the judge issued a scheduling order.  This order gets at the “de novo review” and sets forth how the case will proceed – including whether Barclays gets the right to supplement the record.

Judge Nunley ruled:  “The Court will review FERC’s assessment to determine whether penalties shall be affirmed, vacated, or modified. 16 U.S.C. § 823b(d)(3)(B).  The Court will also consider whether a determination as to this assessment requires supplementation of the record submitted by FERC and/or alternative means of fact-finding.

The Judge further ruled: “The Court hereby bifurcates its determination of disgorgement from its review of liability and the assessed civil penalties.  The Court finds bifurcation facilities a just and expeditious resolution of this litigation. Exxon Co. v. Sofec, Inc., 54 F.3d 570, 575 (9th Cir. 1995).  Accordingly, the parties may address issues relevant to disgorgement only to the extent they are relevant to the Court’s review of liability and civil penalties.  If necessary at a later date the Court will set forth a schedule for a determination of disgorgement.”

Briefing will be:

  • Within 30 days, FERC shall file with the Court the administrative record used by FERC in assessing civil penalties.
  • Within 30 days of the filing of the record, FERC shall file a motion for an order affirming the civil penalties assessed by FERC.
  • Within 60 days of the filing of FERC’s motion, Defendants shall file an opposition.
  • Within 21 days of the filing of Defendants’ opposition, FERC may file a reply.

Judge Nunley also denied Barclays’ motion to file a memo on the scope of the de novo review issue.

FERC v Barclays Scheduling Order